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THE 


LIVES 


OF 


THE CHIEF JUSTICES 


OF : 


ENGLAND. ; 


FROM THE NORMAN CONQUEST TILL THE DEATH OF y 


LORD MANSFIELD. 


BY 


hi JOHN LORD CAMPBELL, LL.D. F.R.S. 2. 


AUTHOR OF 


“THE LIVES OF THE LORD CHANCELLORS OF ENGLAND. 





IN TWO VOLUMES. 


VOL. II. 


BOSTON: 
CHARLES C. LITTLE AND JAMES BROWN, 
1850. 


5 oa | ‘ 
A. 


i ‘n 2 ne ™ : 
TAVGAM 
4 3” 7) - 7 * 





CONTENTS 


OF 


THE SECOND VOLUME. 





CHAPTER XIX. 


CHIEFY JUSTICES FROM THE RESIGNATION OF SIR MATTHEW HALE TILL THE 
APPOINTMENT OF JEFFREYS. 


State of the Times, Page 1. Sir Ricwarp Raynsrorp, 1. His early Career, 1. 
He is made a Baron of the Exchequer, 2. A Puisne Judge of the King’s 
Bench, 2. Chief Justice, 2. He decides the great Case of Privilege on the 
Commitment of Lord Shaftesbury, 2. He is removed from his Office, 3. His 
Death, 4. His Epitaph, 4. Contrast between Raynsford and his Successor, 
Scroaes, 4. Story that Scroggs was the Son of a Butcher, 4. His true Pa- 
rentage, 5. He carries Arms asa Cavalier,6. He studies Law, 6. He becomes 
a Serjeant, 6. He is arrested for Debt, 7. He is introduced to Charles II., 7. 
He is made a Puisne Judge of the Common Pleas, 7, He undermines Lord 
Chief Justice Raynsford, 8. He is made Chief Justice of the King’s Bench, 9. 
The part taken by him respecting the Popish Plot, 9.. Murder of Stayly, the 
Roman Catholic Banker, 10. Other Murders committed by Scroggs, 11. Trial 
of a Popish Priest, 11. Scroggs changes Sides, 12. He procures the Acquittal 
of Sir George Wakeman, 13. Attacks on Chief Justice Scroggs, 18. Eloquent 
Speech by him in his own Vindication, 13. | Acquittal of the Earl of Castlemaine; 
and of Mrs. Cellier, 15. Dialogue with Dangerfield, 15. Ingenious Scheme to 
extinguish the Liberty of the Press, 16. Scroggs frustrates the Attempt to 
indict the Duke of York as a Popish Recusant by discharging the Grand Jury, 
17. Charges against Scroggs before the King in Council, 18. He is acquitted, 
19. Proceedings against him in the House of Commons, 19. Articles of Im- 
peachment carried up to the Lords, 20. He is saved by the sudden Dissolution 
of Parliament, 20. Reasons for cashiering him, 21. He is cashiered, 21. He 
retires into the Country, 21. His Death, 22. His Character, 22. 


CHAPTER XX. 
LIFE OF LORD CHIEF JUSTICE PEMBERTON. 


Glance at the Career and Character of Str FRANcts PEMBERTON, 24. His Origin 
and Education, 25. At Catwnbridge, 26. He is entered at the Temple, 26, 
His profligate Mode of Life, 26. He wastes his Patrimony, 26. He is con- 

A 2 


iv CONTENTS. 


fined for Debt in the Fleet, 27. His Reformation, 27. He makes an Arrange- 
ment with his Creditors and is discharged out of Prison, 29. He is called to the 
Bar, 29. His Success, 30. He is appointed “ Devil” to the Attorney General, 
30. He is made a Serjeant, 30. Contest about him between the two Houses of 
Parliament, 30. He is placed on the Bench as a Puisne Judge, 32. He is dis- 
placed, and returns to the Bar, 23. He is offered the Office of Chief Justice of 
the King’s Bench, 34. After much hesitation he accepts it, 34. He tries 
Fitzharris for High Treason, 35. He tries the Roman Catholic Primate of 
Jreland, 36. He strives to induce the Grand Jury to find an Indictment against 
Lord Shaftesbury, 39. Trial of Lord Grey de Werke for the Seduction of Lady 
Harriet Berkeley, 40. Cause of Pemberton’s Removal from the office of Chief 
Justice of the King’s Bench, 41. The London Quo Warranro, 41, He is 
made Chief Justice of the Common Pleas, 42. Office of Chief Justice of the 
King’s Bench again vacant, 43. Rye-house Plot, 44. Trial of Walcot, 44. 
Lord Russell’s Case, 44, Courteous Demeanour of Pemberton to Lord Russell, 
44, Determination to dismiss Pemberton from being a Judge, 46. His De- 
cisions in Civil Cases, 47. Hea third time commences Practice at the Bar, 48. 
He is Counsel for the Seven Bishops, 48. Question as to whether the Bishops 
were legally imprisoned, 49. Pemberton’s Cross-examination of the Clerk of the 
Council, 49. Difficulty in proving a Publication in Middlesex, 50. Pem- 
berton’s Speech to show that the Petition of the Bishops was not a Libel, 51. 
Weight of Pemberton with the Jury as an ex-Chief Justice, 53. Treatment of 
Pemberton after the Revolution, 53. He is examined before the House of 
Commons, 54. Complaint against him of a Breach of Privilege when he was 
Chief Justice of the King’s Bench, 54. He is committed to Newgate, 56. He 
again practises at the Bar, 57. His Death, 57, His Epitaph, 57. 


CHAPTER XXI. 
LIFE OF LORD CHIEF JUSTICE SAUNDERS. 


Kind feeling among Lawyers for Str EpMuND SAUNDERS in spite of his Profligacy, 
59. Qu. whether he was a Foundling? 59. His first appearance in London, 
60. How he learned to write, 60, His Legal Education, 60. He is called to 
the Bar, 61. Hisrapid Progress,61. The Excellence of his Reports, 62. His 
Character as a Practitioner, 63. He is employed by the Government against 
the Whigs, 63. He pleases the King and is knighted, 64. His Argument 
against Fitzharris, 64. His Quarrel with Chief Justice Pemberton, 64. History 
of the great London Quo Warranto, 65. Saunders made Chief Justice of the 
King’s Bench, 66. His Installation, 66. Hearing of the Quo Warranto, 67. 
Saunders’s last Illness, 68. Judgment in the Quo Warranto, 68. Saunders’s 
Conduct at the Trial of Rex v. Pilkington, 69. His Death, 72. His Ap- 
pearance, Manners, and Habits, 72. How he has contributed to the “ Grandeur 
of the Law,” 73. His Will, 73. His Armorial Bearings, 74. 


CHAPTER XXII. 
CHIEF JUSTICES FROM THE DEATH OF SIR EDMUND SAUNDERS TILL THE REVOLUTION. 


Jerrreys Chief Justice of the King’s Bench, 75. Reference to the Lives of the 
Chancellors, 76. Additions to the “ Life of Jeffreys,” 76. Supposed Reluctance 
of Jeffreys to support James against the Protestant Religion, 78. Vaeaney in 
the Office of Chief Justice of the King’s Bench on the Promotion of Jeffreys to 
be Lord Chancellor, 79. Perplexity about his Successor, 79. Sir Epwarp 
HERBERT selected on account of his Opinion on the “ Dispensing Power,” 80. 

_ His Origin, 80. Formation of his Political Creed, 81. He is sent as Attorney 

_ General to Ireland, 81. His Position on his Return, 82. He is made Chief 


CONTENTS. Vv 


Justice of the King’s Bench, 83. Favourable Inclination towards him, notwith- 
standing his Unfitness, 83. Opinion delivered by him on the Trial of Lord 
Delamere, 84. Sir Edward Hales’s Case to establish the Dispensing Power, 85. 
Opposition of some of the Judges, 86. Dissentient Judges are dismissed, 86. 
Judgment of Chief Justice Herbert, 87, Sham Dissent of Judge Street, 88. 
Herbert in high Favour, and likely to be Chancellor, 89. Herbert on the 
Western Circuit, 90. Herbert offends the King by denying his Power to enforce 
Martial Law in time of Peace, 90. Herbert refuses to sanction the Execution of 
a Deserter unlawfully convicted, 92. Herbert is dismissed from the office of 
Chief Justice of the King’s Bench, and made Chief Justice of the Common Pleas, 
93. At the Revolution, Herbert adheres to King James, 93. He is made Lord 
Chancellor by King James in Exile, 94. He is excepted from the Act of In- 
demnity, 94. Testimonies to his Private Worth, 94. His Brothers Whigs, 95. 
Eminence of Str Roperr Wricut among Bad Judges, 95. His Origin, 95. His 
Idleness and Depravity, 95. He fails in the Profession of the Law, 96. Fraud 
and Perjury of which he was guilty, 96. He is patronised by Jeffreys, 97. How 
he was made a Judge, 97. Scene in Westminster Hall between the Lord Chief 
Justice of the King’s Bench and the Lord Chancellor, 99. Wright promoted 
from being a Baron of the Exchequer to be a Justice of the King’s Bench, 100. 
He is made Chief Justice of the King’s Bench, 100. He orders a Deserter to be 
hanged, contrary to Law, 101. He acts as one of the Visitors to introduce 
Popery into Magdalene College, Oxford, 101. He sits as a Member of the High 
Commission Court, 103. His Activity in forcing the Clergy to read the De- 
claration of Indulgence, 103. Prosecution of the Seven Bishops, 104. Arraign- 
ment, 104. Trial, 105. . Acquittal for Want of Evidence prevented by the In- 
discretion of one of the Counsel, 106. Contest between Chief Justice Wright 
and Justice Powell, 107. Wright’s Contest with Pemberton, 107. Doctrines of 
a renegade Whig, 108. ‘The Chief Justice sums up to the Jury, 109. Opinions 
of the Puisnies, 109. Holloway, 109. Powell, 110. Allybone, 110. De- 
liberation of the Jury, 111. The Verdict, 111. Wright in danger of being 
dismissed, 112. Reason why he was not dismissed, 112. Fate of Wright at the 
Revolution, 113. He dies in Newgate, 113. He is buried with Felons, 113. 
Proceedings against him in Parliament after his Death, 113. Utility of ex- 
hibiting the Abuses of Government which led to the Revolution, 115. 


CHAPTER XXIII. 


LIFE OF LORD CHIEF JUSTICE HOLT, FROM HIS BIRTH TILL THE COMMENCEMENT OF 
HIS CONTESTS WITH THE TWO HOUSES OF PARLIAMENT, 


Services and Character of Sir Joun Hout, 118. His Father, 119. His Birth, 119, 
At School, 120. His early Excesses, 120. He acts the part of a Wizard, 120 
He studies Law at Gray’s Inn, 122. He is called to the Bar, 123, His pro- 
fessional Progress, 123. He is a Whig, 123. He is Counsel for the Earl of 
Danby and the Cathclic Peers charged with being concerned in the Popish Plot, 
124. He acts as Junior to Jeffreys in a Prosecution for Libel, 125. He is 
Counsel for Lord Russell, 125. As Counsel at the Bar he “goes the whole Hog,” 
126. His Argument in Earl of Macclesfield v. Starkey, 127. Attempt to seduce 
him by James II., 128. He is appointed Recorder of London, made King’s 
Serjeant, and knighted, 128. He refuses to abet the arbitrary Measures of the 
King, and is dismissed from the office of Reccrder, 129. He is continued in 
his office of King’s Serjeant, 129. Landing of the Prince of Orange, 130. He 
acts as Assessor to the Peers, 130. He is elected a Member of the Convention 
Parliament, 130. Conference between the two Houses on “ Abdication” and 
“ Desertion,” 131. Holt’s Speech as a Manager for the Commons, 131, He 
takes the Oaths to William and Mary, 132. He is appointed Chief Justice of 
the King’s Bench, 133. His Merits as a Judge, 135. He is praised by the 
Tatler, 186. His Reporters, 136. His celebrated Judgment in Coggs ». 
Bernard, 137. He Jays down the Doctrine that a Slave becomes free by 


Vi CONTENTS. 


breathing the Air of England, 138. His Construction of the Statute requiring 
Persons to attend their Parish Churches, 140. He puts an End to the Practice 
of giving Evidence against a Prisoner of prior Misconduct, and of trying Pri- 
soners in Fetters, 140. Holt’s Influence with his Brother Judges, 141. Weight 
of his Opinion with the Public, 141. His Conduct in presiding at the Trial of . 
State Prosecutions, 142. Trial of Lord Preston for High Treason, 143. Rex v. 
Charnock, 144. Rex v. Rookwood, 145. Vindication of Holt for the Law laid 
down by him in Sir John Freind’s Case, 145, Liberty of the Press in the Reign 
of Queen Anne, 147, 


CHAPTER XXIV. 


CONTINUATION OF THE LIFE OF LORD CHIEF JUSTICE HOLT TILL THE TERMINATION 
OF HIS CONTESTS WITH THE TWO HOUSES OF PARLIAMENT. 


Holt’s Contest with the House of Lords in Rex v. Knowllys, 148. He is sum- 
moned before a Committee of Privileges, 150. His Popularity from his Triumph 
over the House of Lords, 152. The Bankers’ Case, 152. On the Removal of 
Lord Somers, Holt refuses to be Lord Chancellor, 154. He is a Lord Com- 
missioner of the Great Seal, 185. Accession of Queen Anne: Holt reappointed 
Chief Justice, 155. A Majority of Whigs in the House of Lords, and of Tories 
in the House of Commons, 156. Corrupt Decisions of the House of Commons 
in Election Cases, 156. The Aylesbury Case, 156. Qu. whether an Action 
could be maintained by an Elector against a Returning Officer for refusing his 
Vote? 156. The three Puisne Judges in the Negative, 157. Holt contra, 157. 
Judgment of the King’s Bench reversed in the House of Lords, 160. Absurd 
Resolutions of the House of Commons,160. Counter- Resolutions of the House 
of Lords, 161. Writs of Habeas Corpus by the Aylesbury Men, 161. Holt’s 
Opinion for discharging them, 162. He is over-ruled by all the other Judges, 
163. Qu. whether Writ of Error lies on a Judgment on a Return to a Writ of 
Habeas Corpus? 164. Commitments of Counsel by the Commons, 164. Fa- 
bulous Story of Chief Justice Holt threatening to commit the Speaker of the 
House of Commons, 165. The Abuse of Privilege by the House of Commons 
remedied by Public Opinion on a General Election, 165. Holt again refuses 
the Great Seal, 166. 


CHAPTER XXV. 
CONCLUSION OF THE LIFE OF LORD CHIEF JUSTICE HOLT. 


Remainder of Holt’s Judicial Career, 167. His Death, 167. His Funeral, 167. 
His Monument, 169. Holt’s Want of Literature and Science, 169. He put an 
End to Trials for Witchcraft, 170. He exposes hypocritical Pretenders to ex- 
traordinary Virtue, 172. His Detection of a False Prophet, 173. His Practice 
of interrogating Prisoners on Trial, 174. His supposed Opinion as to the Jlle- 
gality of employing the Military to put down Civil Disturbances, 174. His 
Trial at Bar with the Crown, Trin., 176. Holt as an Author, 176. He was 
married to a Shrew,.177. Conclusion, 178. . 


CHAPTER XXVI. 


CHIEF JUSTICES FROM LORD HOLT TILL THE APPOINTMENT OF SIR DUDLEY RYDER, 


Sir THomas PARKER, afterwards Earl of Macclesfield, Chief Justice, 179. His Life 
already written, 180. Vacancy in the Office of Chief Justice of the King’s Bench 


CONTENTS. Vil 


on his Promotion to be Chancellor, 180. Sir Joun Pratr Chief Justice, 181. 
His Origin and Progress at the Bar, 181. He is made a Puisne Judge, 182. 
Chief Justice of the King’s Bench, 182. His most celebrated Judgment, 182. 
His Doctrine of Suspension overturned, 183. Chief Justice Pratt’s Conduct in 
Dr. Bentley’s Case, 183. He tries Layer for High Treason, 186. His Opinion 
respecting the Power of the King in the Marriage and Education of the Royal 
Family, 187. His Death, 188. Lorp RayMonp, 189. Son of Sir Vhomas 
Raymond, 189. He is called to the Bar, 190. His Eminence as a Reporter, 
190. Witchcraft put an end to by the Prosecution of an Impostor, 190. Pro- 
secution of Beau Fielding for Bigamy, 191. Raymond is Counsel for Lindsay 
the Jacobite, 191. Raymond made Solicitor General by the Tories, 192. Ray- 
mond in Opposition, 193. His Speech against the Septennial Bill, 193. He 
joins the Whigs and is made Attorney General, 194. His Speech for the Crown 
in prosecuting Layer, 195. He sinks into a Puisne Judge, 196. He is made 
Chief Justice of the King’s Bench, 197. He is raised to the Peerage, 197. His 
Doctrine that the Publisher of an obscene Libel may be prosecuted for a Mis- 
demeanor, 198. He settles the Law respecting Murder and Manslaughter, 199. 
Major Oneby’s Case, 199. Liability of a Gaoler for Murder by Neglect, 204. 
Lord Raymond on the Law of Libel, 207. Lord Raymond’s Nisi Prius De- 
cisions, 209. _ Lord Raymond’s Abstinence from Politics, 209. His Opposition 
to the Bill for conducting Law Proceedings in English, 210. His Death, 210. 
His Monument, 211. His Epitaph, 211. Panegyric upon him, 212. Lorp 
HARDWICKE Chief Justice of the King’s Bench, 212. Difficulty in filling up the 
Office on his Promotion to be Chancellor, 213. Srr Wirit1am LEE Chief Justice 
of the King’s Bench, 214. His Birth, 214. Prophecy as to the Effect of 
Plodding and Perseverance, 215. His Passion for Special Pleading, 215. 
His Victory in a great Settlement Case, 216. He is Counsel in Appeal of 
Murder, 216. His Dislike of the House of Commons, 217. He is made a 
Puisne Judge, 217. His Intimacy with Lord Hardwicke, 218. He is made 
Chief Justice of England, 218. His increasing Popularity, 219. His Judgment 
in fayour of the “ Rights of Women,” 219. Other important Points decided by 
him, 220. _ Trials of the Rebels at St. Margaret’s Hill, 221. Colonel Townley’s 
Case, 222, An Execution for High Treason, 223, M‘Growther’s Case, 223. 
The Kinlochs’ Case, 224. Sir John Wedderburn’s Case, 226. Signal Defeat of 
Chief Justice Lee in a Trial for Libel, 227. Chief Justice Lee Chancellor of the 
Exchequer, 228. Death of Chief Justice Lee, 229. His Diary and Almanacs, 
229. Chief Justice Lee’s Greatness in his own Time, 231. His Eloge by Sir 
James Burrow, 231. Chief Justice Lee’s MSS., 232. 


CHAPTER XXVII. 
LIFE OF CHIEF JUSTICE RYDER. 


Sir DupiEey RYDER, 233. His Origin, 233. His Education, 234. He is called to 
the Bar, 235. He is made Solicitor General, 235. Description of Dublin and 
the Irish Bar in the beginning of the 18th Century, 236. Irish Judges and 
Juries, 239. Sir Dudley Ryder is made Attorney General, 239. His Speech 
for the Bill to disfranchise the City of Edinburgh, 240. His Speech in Support 
of a Motion in the House of Commons for the summary Punishment of a Li- 
beller, 241.. His Speech in Favour of Impressment, 242. His Speech for at- 
tainting the Sons of the Pretender, 243. His Speech to prove the Expediency 
of allowing the Insurance of Enemies’ Ships, 247. His Speech on the Regency 
Bill, 247. His Speech in Support of Lord Hardwicke’s Marriage Bill, 248. 
His Prosecution of Colonel Townley for High Treason, 250, His Speech on the 
Impeachment of Lord Lovat, 251. Signal Defeat of Mr. Attorney General 
and of the House of Commons, 253. Irish Porter’s Song on “ Sir Doodley,” 
255. Ryder Lord Chief Justice, 255. He is about to be raised to the Peerage, 

. 257. His sudden Death, 257. Letters of Archbishop Ryder, 257.  Ex- 

.. peetation that Sir Dudley Ryder’s Peerage would be conferred on his Son, 258, 


Vili CONTENTS, 


Letter on this Subject from the Honourable Charles Yorke, 258. Sir Dudley 
Ryder’s amiable Character in Domestic Life, 259. Letters from him to Lady 
Ryder, 260. View of Westminster Hall, 260. The Chancellor at Drury Lane, 
261. Anniversary of Sir Dudley Ryder’s Wedding-Day, 261. Fashionable 
Gossip, 262. Perils of a married Lawyer when living en gargon, 262. How a 
Lawyer may account for a Headache got by taking too much Wine, 263. De- 
parture of the Family Coach for Bath to bring back Lady Ryder, 264. Sir 
Dudley’s Joy at her Approach, 264. His Descendants, 265. 


CHAPTER XXVIII. 
LIFE OF CHIEF JUSTICE WILLES. 


Two Chief Justices of the;Common Pleas, 266, Origin of the WILLEs’s, 266. Sir 
John’s early Career, 267. He enters Parliament, and is made a Welsh Judge, 
267. Subsequent Disappointments, 268. He becomes Attorney General, 268. 
His Speech against the Repeal of the Septennial Act, 269. He is made Chief 
Justice of the Common Pleas, 270. His Disappointment on the Death of Lord 
Chancellor Talbot, 270. His Intrigues with Lord Carteret, 271. He is made 
First Lord Commissioner of the Great Seal, 272. He loses the Chancellorship 
by his own Mismanagement, 273. Scene between Sir John Willes and Sir Robert 
Henley, 275. Sir John Willes broken-hearted, 275. Death of Sir John Willes, 

* 275. His Judicial Decisions, 275. His Conduct on the Trial of Elizabeth 
Canning, 277. His Private Life, 277. His Descendants, 278. 


CHAPTER XXIX. 
LIFE OF CHIEF JUSTICE WILMOT. 


Singular Characteristic of Lord Chief Justice Wmmort, 279. His Birth and 
Education, 279. Johnson and Garrick his Schoolfellows, 280. He is called to 
the Bar, 281. His Dread of being known or employed, 281. He becomes 
“ Devil” to the Attorney General, 282. He refuses a Silk Gown, the Appoint- 
ment of King’s Serjeant, and a Seat in Parliament, 282. He is Counsel {for 
the Defendant in a Crim. Con. Cause, 282. He retires into the Country as a 
provincial Counsel, 283. He is appointed a Puisne Judge of the King’s Bench, 
284. He is a Commissioner of the Great Seal, 286. His first Refusal to be 
Chancellor, 286. His Escape at the Worcester Assizes, 287. Offer made to 
him to become Chief Justice of the Common Pleas, 288. Letter from his 
Brother to persuade him to accept, 288. How he became a Chief Justice by 
Duress, 289. Letter of Congratulation from Mr. Justice Yates, 289. From 
Judge Blackstone, 290. He again refuses the Great Seal, 291. He resigns 
Justiceship, 291. Wilmot in Retirement, 292, His Death, 292. His Judicial 
Character, 293. Actionable to state in Writing that a Person has the Itech, 293. 
Meaning, in a Policy, of “usurped Power,” 294. Qu. whether an Action lies 
by a Lady against a Gentleman on a Covenant to marry no one but her, 295, 
Power of the Solicitor General when the Office of Attorney General is vacant, 
296. Power of the Superior Courts to punish Contempts, 297. Satire on Chief 
Justice Wilmot by Horace Walpole, 298. Character of Chief Justice Wilmot 
by his Son, 298. Censure on his Want of Ambition, 300. 


CHAPTER XXX. 
LIFE OF LORD MANSFIELD FROM His BIRTH TILL HE WAS CALLED TO THE BAR. 


Qu. how far Lorp Mansriexp’s Career a fit Subject for Biography? 302. Sources 
of Interest to the Author of this Memoir in composing it, 303. Lord Mansfield’s 


CONTENTS. 1X 


ilustrious Descent, $04. Founder of the Stormont-Murrays, 304. David, Ist 
Viscount Stormont, 805. 5th Viscount Stormont, 306. Birth of William 
Murray, afterwards Earl of Mansfield, 307. Refutation of the oft-told Tale that 
he was removed to England in his Infancy, 307, Words which he could never 
learn to pronounce like an Englishman, 308. Fable of his having been educated 
at Lichfield, 308. Willie Murray at Perth School, 308. Items in Family 
Accounts for Books, &c., for him while he was a Schoolboy, 310. Deliberations 
respecting his further Education and his Profession, 311. His Brother James 
created by the Pretender Earl of Dunbar, 311. He advises that Willie should 
be sent to Westminster, 312, Willie to ride thither on a Pony, 313. He bids 
Adieu to his Native Country, 318. His Journey, 314. His Arrival in London, 
315. Received and taken care of by a Scotch Apothecary, 315. Items of Dis- 
bursements for him, 315. William Murray at Westminster, 315. Letter from 
the kind Apothecary to his Mother respecting him, 316. Anecdote of him while 
at Westminster, 317. He is elected a Scholar of Christ Church, and goes to 
Oxford, 318. His Destination changed from the Church to the Bar, 319. 
Assistance afforded him by the first Lord Foley, 320. While at Oxford he is 
entered of Lincoln’s Inn, $20, His Studies at Oxford, 320. He devotes himself 
to the Art of Oratory, $21. His Latin Essay criticising Demosthenes, 322. 
He gains the Latin Prize Poem on the Death of George I., 324. Origin of the 
Rivalry between him and the elder Pitt, 326. Murray at Lincoln’s Inn, 326, 
He attends a Debating Society, 329. He “drinks Champagne with the Wits,” 
$29. His Intimacy with Pope, 329. His Excursion to France and Italy, 331, 
He is called to the Bar, 331. His Accomplishments as an Advocate, 332. 


CHAPTER XXXI. 


CONTINUATION OF THE LIVE OF LORD MANSFIELD TILL HE WAS MADE SOLICITOR 
GENERAL AND ENTERED THE HOUSE OF COMMONS, 


At first without Business, 333. His Attachment to his Profession, 333. He takes 
Chambers in King’s Bench Walk, where he is visited by Pope, 334. His Letters 
“©on the Study of Ancient and Modern History,” 334. He prospers at the Bar 
of the House of Lords, 336. He is Counsel against the Bill for Disfranchising 
the City of Edinburgh for the Murder of Captain Porteus, 338. He is crossed 
in Love, 339. Comforted by Pope, 340. Cured by Business, 341. He is 
placed at the Head of the Bar by his Speech in a Crim. Con. Cause, 341. 
No Truth in the vulgar Story of his being suddenly required to speak on his 
Leader being taken ill, 342. Sarah, Duchess of Marlborough, his Client, 343, 
He appears at the Bar of the House of Commons on the Petition for a War 
with Spain, 344. His Marriage, $45. After the Fall of Sir Robert Walpole 
he attaches himself to the Pelhams, 346. He is made Solicitor General, 347. 
His Private Life, 348. His friendly Letter to Booth the Conveyancer, 348. 
Letters from him to Lord Milton, the Scotch Judge, 349. Regret of Pope that 
Murray had abandoned the Muses for Law and Politics, 351. Verses written by 
Pope in Murray’s Chambers, 351. Their last Meeting, 352. 


CHAPTER XXXII. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS MADE ATTORNEY 
GENERAL, 


Murray’s brilliant Success in the House of Commons, 353. Pitt his Rival, 353. 
Murray’s Speech on the Employment of Hanoverian Troops, 354. Murray the 
Prop of the Administration in the House of Commons, 356. Rebellion of 1745, 
357. Suspension of the Habeas Corpus Act, 358. Murray prosecutes the rebel 
Lords, 359. Trial of Lord Balmerino, 359. Trial of Lord Lovat, 361. Lord 


MOT Lle . a 


x CONTENTS. 


Lovat’s Compliment to Mr. Murray, 363. Libels upon him indiscreetly an- 
swered, 364. Murray an ultra Free Trader, 365. His Speech in Defence of the 
Treaty of Aix-la-Chapelle, 367. Interval of Quiet to Murray in the House of 
Commons while Pitt was in Office, 367. Death of Frederick, Prince of Wales, 
868. The Regency Bill, 368. Charge against Murray that he drank the 
Health of the Pretender, 370. Hearing of the Charge before the Privy Council, 
372. Murray’s Speech in his own Defence, 373. He is acquitted, but sus- 
pected, 375. Pitt’s Attack upon him as a Jacobite, 375. Murray’s celebrated 
Vindication of our Naval Rights, 376. His Private Life, 377. His Enjoyment 
of Lassitude, 378. His Patronage of Blackstone, 378. Death of Mr. Pelham, 
379. Murray declines the situation of Prime Minister, 380. Duke of New- 
castle Prime Minister, 380. Murray Attorney General, 381. 


CHAPTER XXXIII. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS MADE LORD CHIEF 
JUSTICE OF THE KING'S BENCH. 


Murray refuses the Rolls, $82. Passages of Arms between Murray and Pitt, 383. 
Letter to Lord Milton announcing his Appointment as Lord Justice Clerk, 385. 
Disagreeable and apparently desperate Position in which Murray found himself, 
385. Sudden Death of Sir Dudley Ryder, 386. Murray claims the office of 
Chief Justice of the King’s Bench, 386. Vain Efforts of the Duke of Neweastle 
to induce him to remain in the House of Commons, 387. Murray Chief Justice 
of the King’s Bench, 389. The Appointment generally approved of, 389. His 
Farewell Address on taking leave of Lincoln’s Inn, 390. 


CHAPTER XXXIV. 
VIEW OF LORD MANSFIELD’S JUDICIAL CHARACTER AND OF HIS DECISIONS. 


He takes his Seat in the Court of King’s Bench, 393. Necessity for a Review of 
Lord Mansfield’s Judgments, 393. Was he a great Judge? 394. His un- 
paralleled Ascendaney in Westminster Hall, 359, His passionate Love of the 
Duties of a Judge, 397. Reforms of Procedure introduced by him, 398. Im- 
provements, founded on Principle, which he contemplated, 402. Panegyric 
upon Lord Mansfield by Buller, 404. His Treatment of the Law of Insurance, 
405. Bills of Exchange, 407. Right to Freight, 409. Employment of “ Puf- 
fers” at an Auction, 409. His Colonial Law, 410. Campbell v. Hall, 410. 
Legality of Ransom Bills,413. Remedy against the Governor of a Foreign Pos- 
session, 414. Fabrigas v. Mostyn, 414. Lord Mansfield’s Respect for the 
Jurisdiction of other Courts, 416. Right to Wreck, 417. Somersett’s Case: 
a Slave becomes free in England, 418. Legality of pressing Seamen, 419. 
Wagers, 420. On the Result of an Appeal to the House of Lords, 420. Two 
Heirs “ running their Fathers,” 420. On the Sex of the Chevalier D’Eon, 422. 
Conspiracy to corrupt a young Female indictable, 424. Lord Grosvenor », 
Duke of Cumberland, 425. Literary Property, 426. Lord Mansfield’s Deci- 
cisions on the Law of Evidence, 429, Famous Case of Perrin v. Blake, 430. 
Controversy respecting the contradictory Opinions given by Lord Mansfield, 
434. Charge of Junius against Lord Mansfield for trying to subvert the Com- 
mon Law, 437. Censure of him by Lord Redesdale, 438. Vindication of 
Lord Mansfield, 438. His supposed Preference for the Civil Law, 438. His 
supposed Neglect of established Forms and former Decisions, 439. His supposed 
Confounding of Legal and Equitable Jurisdiction, 440. His real Love for Com- 
mon-Law Modes of Proceeding, 442, Lord Mansfield as a Criminal Judge, 443. 


CONTENTS. x1 


Lord Mansfield’s Merits in deciding Scotch Appeals in the House of Lords, 
444, The Douglas Cause; Explanation of Lord Mansfield’s bad Speech upon it, 
445, 


CHAPTER XXXV. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD FROM HIS BEING MADE. CHIEF 
JUSTICE TILL THE ACCESSION OF GEORGE III. 


Offer to Lord Mansfield of the Great Seal, 446. He takes his Seat in the 
House of Peers, 447. His Maiden Speech there, 447. Lord Mansfield 
Chancellor of the Exchequer, 448. Intrigues for the Formation of a new 
Ministry, 449. Lord Chatham’s first Government, 450. Lord Mansfield again 
refuses the Great Seal, 450. He is a Member of the Cabinet, 451. He 
throws out the Habeas Corpus Amendment Bill, 453. Trial of De Hensey 
for High Treason, 454. End of the Reign of George II., 455. 


CHAPTER XXXVI. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE DISAPPEARANCE OF 
JUNIUS, 


Accession of George III., 456. Lord Mansfield reappointed Chief Justice, 456. 
Liaison between Lord Mansfield and Lord Bute, 456. Resignation of Lord 
Chatham, 457. Prudent Advice given by Lord Mansfield to Lord Bute, 458. 
Rumour that Lord Mansfield wished to be Chancellor, 458. Lord Bute’s 
Differences with Lord Mansfield, and subsequent Imprudence, 459. Lord 
Bute resigns, 460. Lord Mansfield continues a Member of the Cabinet, 460, 
General Warrants, 461. Wilkes’s Outlawry, 462. Lord Mansfield’s Judg- 
ment reversing the Outlawry, 463. Lord Mansfield retires from the 
Cabinet, 466. Disputes with America, 466. Lord Mansfield again refuses 
the Great Seal, 469. Question respecting the Middlesex Election, 470. 
Lord Chatham’s Attack on Lord Mansfield, 471. Lord Mansfield quails 
under the Infliction, 473. Lord Chatham’s Blunder about “an Action for 
Damages against the House of Commons,” 474. Lord Mansfield’s Speech 
against Lord Chatham’s Bill to reverse the Decision of the House of Com- 
mons in the Middlesex Election Case, 475. Junius’s Letter to the King, 476. 
Rex v. Almon, 477. Rex v. Woodfall, 478. Rex v. Miller, 479. Junius’s 
first Letter to Lord Mansfield, 481. Attacks upon Lord Mansfield in Parlia- 
ment, 484, His successful Defence of himself, 484. Lord Mansfield’s subse- 
quent Indiscretion and Cowardice in his Contest with Lord Camden, 487. 
Lord Mansfield gives the Great Seal to Lord Bathurst. New Attacks on Lord 
Mansfield by Junius, 490, Junius at last silenced, 492. 


CHAPTER XXXVII. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE DEATH OF LORD 
CHATHAM. 


Lord Mansfield visits Paris, 494. Progress of the Disputes with America, 495. 
Lord Mansfield’s Speech for a vigorous Prosecution of the War, 496. Specimen 
of the Manners of the House of Lords in the Reign of George III., 496. Sup- 
posed Consequences of the Independence of America, 500. ‘Trial of the Duchess 
of Kingston for Bigamy, 500. Lord Mansfield created an Earl, 501. Trial of 
John Horne Tooke for a Libel, 503. Disasters in America, 504. Death of 
Lord Chatham, 505. Lord Mansfield’s Behaviour on this Occasion, 506. 


’ 


CHAPTER XXXVIII. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE CONCLUSION OF THE 
TRIAL OF LORD GEORGE GORDON. 

Decline of Lord Mansfield’s Political Importance after the Death of Lord Chatham, 

509, He recommends a Coalition of Parties, 510, Lord George Gordon’s 


xu CONTENTS. 


Riots, 511. Lord Mansfield’s Love of Religious Toleration, 511. Remedy to 
Dissenting Ministers, 511. Evidence of a Quaker admitted in an Action for 
Bribery, 511. A Dissenter not liable to a Penalty for not accepting an Office 
requiring Conformity to the Established Church, 512. Acquittal of a Roman 
Catholic Priest charged with the Crime of saying Mass, 514. Bill to mitigate 
the Penal Laws against Catholics, 516. Anti-Popery Riots and Petitions, 516. 
Violent Speech of Lord George Gordon in the House of Commons, 516. 
Monster Petition from the Protestant Association to the House of Commons, 
517. Meeting in St. George’s Fields, 517. Assault on the Peers, 518. Great 
Courage displayed by Lord Mansfield, 520, He is deserted by all his Brother 
Peers, 521. He gets home in Safety, 522. His House isbu rnt down by the 
Mob, 524. Stanzas by Cowper on the Burning of Lord Mansfield’s Library, 
525. The Riots are at last quelled, 526. Lord Mansfield’s Speech vindicating 
the Employment of the Military for that purpose, 527. He presides at the 
Trial of Lord George Gordon, 531. Erskine’s Allusion to the Burning of Lord 
Mansfield’s House, 531. Lord Mansfield’s Exposition of the Law of High 
Treason, 532, Lord George Gordon is acquitted, 532. 


CHAPTER XXXIX. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE RESIGNED THE OFFICE 
OF CHIEF JUSTICE, 


Lord Mansfield takes no part in Politics during the Administrations of Lord 
Rockingham and Lord Shelburne, 533. He joins the Coalition, 534. Fox’s 
India Bill in the House of Lords, 535. Mr. Pitt Prime Minister, 537. Lord 
Mansfield’s last Speech in Parliament, 538. Close of Lord Mansfield’s Political 
Career, 539. Dean of St. Asaph’s Case: Rights of Juries in Cases of Libel, 
540. Progress of Opinion respecting the Law of Libel, 544. Action by Mr. 
Pitt for a Libel accusing him of gambling in the Funds, 545. Lord Mansfield’s 
Visit to Tunbridge Wells, 547. Interview between Lord Mansfield and Lord 
George Sackville, 548. Lord Mansfield, unable to sit in Court, retains his 
Office, 549. He resigns the office of Chief Justice, 550. Address to him by 
the King’s Bench Bar, 551, His Answer, 551. 


CHAPTER XL. 


CONCLUSION OF THE LIFE OF LORD MANSFIELD. 


Lord Mansfield in Retirement, 552. His Opinion upon the Introduction of Jury 
Trial in Civil Cases in Scotland, 553. Recollections of Lord Mansfield by his 
Grand-Nephew, 555. His Amusements, 555. His Care of his Fortune, 556. 
He abstains from giving any Opinion upon the Regency Question, 557, His 
Views of the French Revolution, 558. His continuing Powers of Memory, 559. 
His last Illness, 560. His Death, 561. His Funeral, 561. His Will, 561. 
His Position among the Lawyers of the Eighteenth Century, 562. Felicity of 
the Life of a Lawyer practising under him, 564. Solution of the Charge that 
he knew no Law, 565. Sermon written by him and preached by a Bishop, 566. 
His Demeanour in Society, 568. His Facetie, 569. Jokes on Serjeant Hill, 
571. His Advice to a General about to act as a Colonial Judge, 572. The 
Space occupied by him in the Public Eye, 573. His Habits of Industry and 
Temperance, 574, His Defects and Faults, 576. Without original Genius, 
576. His Want of Moral Courage, 576. Without Warmth of Affection, 577. 
Defence of his Public Conduct, 578. Lampoon upon him supposed to be 
written by a Chief Justice, 579. His Character by Smollett, 579. By other 
Contemporaries, 580. By Lord Monboddo, 580. By Bishop Hurd, 581. By 
Bishop Newton, 581. Imitations of his Manner of Speaking, 583. Likenesses 
of him, 583, Aspiration of the Author, 585. 


LIVES 


OF THE 


CHIEF JUSTICES OF ENGLAND. 


CHAPTER XIX. 


CHIEF JUSTICES FROM THE RESIGNATION OF SIR MATTHEW HALE 
TILL THE APPOINTMENT OF JEFFREYS. 


ON the resignation of Sir Matthew Hale the times were yet 
tolerably quiet, and, there being no Government job to be 
done in the Court of King’s Bont a disposition existed to 
appoint a respectable man to succeed him; but a great 
penury of learning and ability was discovered in icone to 
those, either at the bar or on the bench, whose fitness was 
canvassed, and, at last, Lord Nottingham, who now held 
the great seal, decided that he could not do better than pro- 
mote Sir Ricnarp RaynsFrorD, a Puisne Judge of this 
court, to be Chief Justice. He was a man of good family, 
fair estate, decent character, and agreeable nianners, with a 
sufficient portion of understanding and learning to keep him 
above contempt. 

Descended from the Raynsfords of Raynsford, in the 
county of Lancaster, he was of a branch of the family settled 
at Dullington, in Northamptonshire. He began life as a 
younger brother, and was bred to the bar at Lincoln’s Inn. 
His relations were strong Cavaliers, and he himself enter- 
tained, in his heart, a thorough hatred of Roundheads; but, 
entering upon his professional career when the Parliament 
had gained a complete ascendancy over r the King, he deemed 


VOL. II. B 


CHAP: 
XIX. 


State of 
the times. 
A.D. 1676. 


Sir Richard 
Raynsford. 


His early 
career, 





Nov, 16. 
1663. 

He is made 
a Baron of 
the Exche- 
quer. 


Feb. 6. 
1669. 

A Puisne 
Judge of 
the King’s 
Bench. 


Chief Jus- 
tice. 

April 12. 
1676. 


He decides 
the great 
case of pri- 
vilege on 
the com- 
mitment of 
Lord 
Shaftes- 
bury. 


REIGN OF CHARLES II. 


it more prudent to submit to the ruling powers, and in 1653 
he was chosen Deputy Recorder of Northampton; but he 
neither obtained nor sought any farther preferment till the 
Restoration. By the death of his elder brother he obtained 
possession of the patrimonial property, reckoned worth 600/. 
a year, and he was to have been made one of the “‘ KNIGHTS 
OF THE Roya Oak” if that order, which was in con- 
templation, had been established. Although he represented 
the county of Northampton in the Convention Parliament 
and that which followed, and he was looked upon rather as 
a country squire than a lawyer, he had a liking for the pro- 
fession, and he continued to attend the courts and to go the 
circuit. In 1663 he was made a Baron of the Exchequer, 
and for six years he sat, almost dumb, listening to profound 
elucidations of the law from the lips of Lord Chief Baron 
Hale. It was then convenient that he should be transferred 
to the King’s Bench *, where he still maintained his repu- 
tation for good sense and discretion. No one haying 
dreamed of his going higher, the news of his appointment as 
Chief Justice of England caused considerable surprise ; but, 
on account of his inoffensiveness and gentlemanlike deport- 
ment, there was a general inclination to support him and to 
speak well of him. 
He held his office two years, — till the Popish plot broke 
out, and the Government deemed it necessary to substitute 
for him a tool better fashioned for doing the horrid work then 
on hand to their mind—Sr1r WiLiiam Scroees; who, 
next to JEFFREYS,—and at a very short distance from him,— 
is considered the most infamous judge who ever sat on the 
English bench. | 
During Lord Chief Justice Raynsford’s time, one case of 
great public interest arose, and this he disposed of very satis- 
factorily. The famous Earl of Shaftesbury—having been sent 
to the Tower by the House of Peers, under a warrant which 
merely stated that it was “for high contempts committed 
against this House,” without specifying what the offence was 


* 2 Keble, 469. On this occasion he took precedence of a King’s Bench 
Puisne, who had been made a judge after him: — “ Et donque sans autre cere- 


mony, il seu sure le ba. supra Morton, quia, il fust Baron devenant que Morton 
fust fait Justice.” -—-1 Sid. 408. 


LIFE OF CHIEF JUSTICE RAYNSFORD. 


—sought to be discharged by a writ of habeas corpus, return- 
able in the King’s Bench,— on the ground that the warrant 
was illegal; and he and his counsel argued very plausibly that 
every freeman was entitled to know the charge on which he 
was deprived of his liberty, and that what the Lords con- 
strued as a high contempt might, in reality, be an act per- 
fectly innocent, or such as it was the duty of the party 
imprisoned to do under the obligation of a statute or of the 
common law. 

At this time Shaftesbury was highly obnoxious to Danby, 
the Prime Minister, who earnestly desired to detain his 
rival in custody ; otherwise, no one can tell how the point of 
privilege would have been settled. We are bound, however, 
to suppose that all the Judges of the Court looked only to 
the just principles on which parliamentary privilege is 
founded, and to Chief Justice Newdigate’s decision in Sir 
Robert Pye’s case during the Commonwealth. 

Raynsford, C. J.: “This Court has no jurisdiction of the 
cause, and therefore we cannot take into consideration the form 
of the return. We ought not to extend our jurisdiction beyond 
its due limits, and the practice of our ancestors will not warrant us 
in such an attempt. The consequence would be very mischievous 
if this Court should deliver a member of the House of Peers or 
Commons, committed for contempt, for thereby the public business 
may be retarded; for it may be the commitment was for evil 
behaviour or indecent reflections on other members, to the dise 
turbance of the affairs of Parliament. The commitment in this 
case is not for safe custody, but in execution of the judgment given 
by the Lords for the contempt; and, therefore, if he were bailed 
he would be delivered out of execution. For a contempt in facie 
curi@ there is no other judgment. This Court has no jurisdiction, 
and therefore the prisoner must be remanded.” * 

So he lay in custody till he was obliged to make an abject 
apology to obtain his liberation, and he seemed for ever 
ruined as a public man — when the Popish plot suddenly 
made him more popular and more powerful than ever. 

The shadow of this coming event was the signal for the 


He is re- 
moved 


dismission of Sir Richard Raynsford — the first instance of fom his 


such an exercise of the prerogative during the present 


ATG Steer, 1iil. 
BQ 


office, 





May 1678, 


His death. 


His epi- 
taph, 


Contrast 
between 
Raynsford 
and his 
successor, 
Scroggs. 


Story that 
Scroges 
was the 
son of a 
butcher. 


REIGN OF CHARLES II. 


reign.* Although there had been before him four Chief 
Justices of the King’s Bench appointed by Charles II. in 
rapid succession, the first three had died in office, and the 
fourth had voluntarily resigned. Raynsford was very un- 
willing to retire, but, being plainly told that this step was ne- 
cessary for the King’s service, he at last quietly submitted, and, 
as he had no quarrel with the Government, the act of cashier- 
ing him was carried through with all becoming delicacy. 

He retired to his country house at Dullington, and—haying 
founded almshouses there for the good of his soul, to main- 
tain old men and old women, with an allowance of 2s. weekly 
to each—he died on the 17th of December, 1679, in the 75th 
year of his age. A monument was erected to his memory in 
the parish church, with an inscription from which it might 
be supposed that he was a greater Chief Justice than Coke, 
Hale, Holt, or Mansfield. I will give a short specimen of 
it: -—— : 

“ Richardi Raynsford Militis 
Nuper de Banco Regis Capitalis Justiciarii, &c, 
Eximii sui seculi decus, 
Quem non ceeca sors, at spectata virtus, 
Ad illos quos ornayit honores evexit, 
Quem summa in Deum pietas, in patriam charitas, 
In Regem, in ecclesiam, inconeussa fides, 


In jure dicendo erudita probitas, 
Asylum bonis, flagellum malis,” &e, &c. F 





Never was there a more striking contrast than between 
Chief Justice Raynsford and his immediate successor. ScROGGS 
had excellent natural abilities, and might have made a great 
figure in his profession; but was profligate in his habits, 
brutal in his manners, with only one rule to guide him —a 
regard to what he considered his own interest, — without a 
touch of humanity,—wholly impenetrable to remorse. — 

It was positively asserted in his lifetime, and it has been 
often repeated since, that he was the son of a butcher, and 
that he was so cruel as a judge because he had been himself 
accustomed to kill calves and lambs when he was a boy. 


*«'T. T. 3 Car. II., Mundum. ‘his term Sir Richard Raynsford was re- 
moved, and Sir William Scroggs, one of the Justices of the Common Pleas, was 
made Lord Chief Justice of the King’s Bench.” — (1 Vent. $29.) 

¢ Bridges’ Northampton, i, 495. 


LIFE OF CHIEF JUSTICE SCROGGS. 


A popular ballad, published at the time when he was 
pouring forth innocent blood like water, contained these 
stanzas :— 


* A butcher’s son’s Judge Capital, 
Poor Protestants to enthral, 
And England to enslave, sirs ; 
Lose both our laws and lives we must, 
When to do justice we entrust 
So known an arrant knave, sirs. 


*¢ His father once exempted was 
Out of all juries; why? because 
He was a man of blood, sirs. 
And why the butcherly son (forsocth !) 
Should now be judge and jury both, 
Cannot be understood, sirs. 


“ The good old man, with knife and knocks, 
Made harmless sheep and stubborn ox 
Stoop to him in his fury ; 
But the bribed son, like greasy oaph, 
Kneels down and worships golden calf, 
And massacres the jury.” * 


There are many grave prose authorities to the same effect. 
Roger North, who must have known him familiarly for many 
years, and highly approved of his principles, says, “ This Sir 
William Scroggs was of a mean extract, having been a 
butcher’s son;”t and Sir William Dugdale, supposed to be 
the most accurate of genealogists, being not only a man of 
profound antiquarian learning, but at the head of heraldry as 
GARTER Kine ar ARMS, wrote, in answer to inquiries on 
the subject from Wood, the author of the ATHEN&, “ Sir 
William Scroggs was the son of a one-eyed butcher near 
Smithfield Bars; and his mother was a big fat woman, with 
a red nose like an ale-wife.” t 

Yet it is quite certain that the usual solution of Scroges’s 
taste for blood is a pure fiction, for he was born and teed a 
gentleman. Some said, jocularly, that he was descended 
from the ancient Welsh family Ailmaddocks of Kilmaddocks §; 
but, in truth, his father was a squire, of respectable family 


* This metrical broadside is entitled “‘ Justice in Masquerade.” 

t+ Life of North, i. p. 296. 

¢ Athene, vol. iv. p. 117. Wood cautions his readers against giving implicit 
eredit to this statement, as Dugdale had a spite against Scroggs, who had re- 
fused to pay certain fees to the College of Arms, which had been demanded of 
him when he was made a knight, 

§ Kill — mad — ox, 

BS 


CHAP, 
XIX. 





His true 
parentage. 


He carries 
arms as a 
Cavalier. 


He studies 
law. 


He be- 
comes a 
Serjeant. 
June 25. 
1669. 
Noy. 21, 


LIFE OF CHIEF JUSTICE SCROGGS,. 


and good estate, in Oxfordshire. Young Scroggs was several 
years at a grammar-school, and he took a degree with some 
credit in the University of Oxford, having studied first at 
Oriel, and then at Pembroke, College. Te was intended for 
the Church, and, in quiet times, might have died respected 
as a pains-taking curate, or as Archbishop of Canterbury. 
But, the civil war breaking out while he was still under age, 
he enlisted in the King’s cause, and afterwards commanded 
a troop of horse, which did good service in several severe 
skirmishes. Unfortunately, his morals did not escape the 
taint which distinguished both men and officers on the 
Cavalier side. 

The dissolute habits he had contracted unfitted him entirely 
for the ecclesiastical profession, and he was advised to try 
his luck in the law. He had a quick conception, a bold 
manner, and an enterprising mind; and prophecies were 
uttered of his great success if he should exchange the cuirass 
for the long robe. He was entered as a student at Gray’s 
Inn, and he showed that he was capable, by short fits, of 
keen application; but his love of profligacy and of expense 
still continued, and both his health and his finances suffered 
accordingly. 

However, he contrived to be called to the bar; and some. 
of his pot companions being attorneys, they occasionally 
employed him in causes likely to be won by a loud voice and 
an unscrupulous appeal to the prejudices of the jury. He 
practised in the King’s Bench, where, although he now and 
then made a splashy speech, his business by no means in- 
creased in the same ratio as his debts. ‘ He was,” says 
Roger North, “a great voluptuary, his debaucheries egregious, 
and his life loose; which made the Lord Chief Justice Hale 
detest him.” Thinking that he might have a better chance 
in the Court of Common Pleas, where the men in business 
were very old and dull, he took the degree of the coif, and 
he was soon after made a King’s Serjeant. Still, however, 
he kept company with Ken, Guy, and the high-Court rakes, 
and his clients could not depend upon him. His visage being 
comely, and his speech witty and bold, he was a fayourite 


LIFE OF CHIEF JUSTICE SCROGGS. 


with juries, and sometimes carried off wonderful verdicts ; 
but, when he ought to have been consulting in his chamber 
in Serjeants’ Inn, he was in a tavern or gaming-house, or 
worse place, near St. James’s palace. Thus his gains were 
unsteady, and the fees which he received were speedily spent 
in dissipation, so that he fell into a state of great pecuniary 
embarrassment. On one occasion, he was arrested by a 
creditor in Westminster Hall as he was about to enter his 
coach. ‘The process being out of the King’s Bench, he com- 
plained to that Court of a breach of his privileges as a Ser- 
jeant; but Lord Chief Justice Hale refused to discharge 
him. He afterwards pleaded his privilege, and brought an 
action for what he called the illegal arrest, contending that, 
as a Serjeant-at-law, he could only be regularly sued in the 
Court of Common Pleas. The Judges decided unanimously 
against him, Hale observing, “ Although Serjeants have a 
monopoly of practice in the Common Pleas, they have a right 
to practise, and do often practise, at this bar; and if we were 
to assign one of them as counsel, and he were to refuse to 
act, we should make bold to commit him to prison.” * 
Meanwhile, Serjeant Scroggs was in high favour with 
Lord Shaftesbury’s enemies, who, on the commitment of 
that turbulent leader to the Tower for breach of privilege, 
had gained a temporary advantage over him. Through the 
agency of Chiffinch, superintendent of the secret intrigues 
of every description which were carried on at Whitehall, he 
had been introduced to Charles II., and the merry monarch 
took pleasure in his licentious conversation. What was of 
more importance to his advancement, he was recommended to 
the Earl of Danby, the reigning Prime Minister, as a man that 
might be useful to the Government if he were made a judge. 
In consequence, on the 23d of October, 1676, he was knighted, 
and sworn in a Justice of the Court of Common Pleas. Sir 
Allan Broderick, in a letter to ‘the Honourable Lawrence 
Hyde,” written a few days after, says, “ Sir William Scroggs, 
on Monday, being admitted Judge, made so excellent a speech 
that my Lord Northampton, then present, went from West- 
* Freeman, 389.; 2 Lev. 129.; 3 Keb. 424. 439, 440.; Roger North’s 


Lives of the Norths, i. 137. 
B 4 


7 


CHAP. 
XIX. 





A.D. 1669 
—1676. 


He is ar- 
rested for 
debt. 


He is in- 
troduced to 
Charles II. 


He is made 
a Puisne 
Judge of 
the Com- 
mon Pleas, 


8 


CHAP, 
XIX. 


A.pv. 1678, 


He under- 

mines Lord 
Chief Jus- 

tice Rayns- 
ford. 





REIGN OF CHARLES It. 


minster to Whitehall immediately, and told the King he had, 
since his happy restoration, caused many hundred sermons to 
be printed, all which together taught not the people half so 
much loyalty ; therefore, as a sermon, desired his command 
to have it printed and published in all the market towns in 
England.”* 

Mr. Justice Scroggs gave himself little trouble with law 
business that came before the Court; but, in addressing grand 
juries on the circuit, he was loud and eloquent against the 
proceedings of the “country party,” and he still continued to 
be frequently in the circle at Whitehall, where he took op- 
portunities not only to celebrate his own zeal, but to sneer at 
Sir John Raynsford, the Chief Justice of the King’s Bench, 
whose place he was desirous to fill.j Chiffinch, and his other 
patrons of the back-stairs, were in the habit of sounding his 
praise, and asserting that he was the only man who, as head 
of the King’s Bench, could effectually cope with the ma- 
neuvres of Shaftesbury. This unconquerable intriguer, 
having been discharged from custody, was again plotting 
against the Government, was preparing to set up the legiti- 
macy of Monmouth, and was asserting that the Duke of 
York should be set aside from the succession to the throne 
and prosecuted as a Popish recusant. ‘There had been a 
reluctance to exercise the prerogative of cashiering judges, 
which had been dormant during the long reign of Elizabeth, 
and the abuse of which had caused such scandal in the 
reigns of James I. and Charles I. But these scruples being 
once overcome were wholly disregarded. From this time 
the system recommenced of clearing the bench for political 
reasons, and it was continued till, the vilest wretch the 
profession of the law could furnish being Chief Justice of 
England, his tenure of the office became in some degree 
independent.t t 

The immediate cause of Raynsford’s removal was the de- 

* Correspondence of the Earls of Clarendon and Rochester, vol. i. p. 2. 

t In consequence of the intrigues of Puisne Judges desirous of becoming 
Chiefs in the reigns of Charles II, and James II., the rule was laid down at the 
Revolution that a Puisne Judge is only to attend one levee on his appointment, 
and is never again to appear at Court. 


¢ Sir Robert Wright, James IT.’s last Chief Justice, who presided at the trial 
of the Seven Bishops, 


LIFE OF CHIEF JUSTICE SCROGGS. 


sire of the Government to have a Chief Justice of the King’s 
Bench on whose vigour and subserviency reliance could 
be placed, to counteract the apprehended machinations of 
Shaftesbury. 

On the 31st of May, 1678, Sir William Scroggs was 
sworn into the office*, and he remained in it for a period of 
three years. How he conducted himself in civil suits is 
never once mentioned, for the attention of mankind was en- 
tirely absorbed by his scandalous misbehaviour as a Criminal 
Judge. He is looked to with more loathing, if not with more 
indignation, than Jeffreys, for in his abominable cruelties he 
was the sordid tool of others, and in his subsequent career he 
had not the feeble excuse of gratifying his own passions or 
advancing his own interests. 

Although quite indifferent with regard to religion, and 
ready to have declared himself a Papist, or a Puritan, or a 
Mahometan, according to the prompting of his superiors, —find- 
ing that the policy of the Government was to outbid Shaftes- 
bury in zeal for Protestantism, he professed an implicit 
belief in all the wonders revealed by Titus Oates, in the 
murder of Sir Edmondbury Godfrey by Papists, and in the 
absolute necessity for cutting off without pity all those who 
were engaged in the nefarious design to assassinate the King, 
to burn London and to extinguish the flames with the blood 
of Protestants. He thought himself to be in the singularly 
felicitous situation of pleasing the Government while he re- 
ceived shouts of applause from the mob. Burnet, speaking of 
his appointment, says, ‘‘ It was a melancholy thing to see so 
bad, so ignorant, and so poor a man raised up to that great 
post. Yet he, now seeing how the stream ran, went into it 
with so much zeal and heartiness that he was become the 
favourite of the people.” 

The first of the Popish Plot judicial murders — which are 
more disgraceful to England than the massacre of St. Bar- 


* 1 Vent. 329.; Sir Thomas Raynard, 244, 

+ Own Times, ii. 69. He thus introduces our hero: —“ The Lord Chief 
Justice at that time was Sir William Scroggs, a man more valued for a good 
readiness in speaking well than either for learning in his profession or for any 
moral virtue. His life had been indecently scandalous, and his fortunes were 
very low.” 


9 


CHAP. 
XIX. 


A.D. 1678. 


He is made 
Chief Jus- 
tice of the 
King’s 
ench, 


\ 


The part 
taken by 
him re- 
specting 
the Popish 
Plot. 


Nov. 20. 


10 


CHAP. 
XIX. 


A.p. 1679. 


Murder of 
Stayly, the 
Roman 
Catholic 
banker, 


REIGN OF CHARLES II. 


tholomew’s is to France — was that of Stayly, the Roman 
Catholic banker. Being tried at the bar of the Court of 
King’s Bench, Scroggs, according to the old fashion, which 
had gone out during the Commonwealth, repeatedly put 
questions to the prisoner, attempting to intimidate him, or to 
involve him in contradictions, or to elicit from him some in- 
discreet admission of facts. A witness having stated that 
‘“‘ he had often heard the prisoner say he would lose his blood 
for the King, and speak as loyally as man could speak,” 
Scroggs exclaimed, “ That is, when he spoke to a Protestant!” 
In summing up, having run himself out of breath by the 
violence with which he declaimed against the Pope and the 
Jesuits, he thus apologised to the jury : — 

«“ Excuse me, gentlemen, if I am a little warm, when perils are 
so many, murders so secret, that we cannot discover the murderer 
of that gentleman whom we all knew so well.* When things are 
transacted so closely, and our King isin great danger, and religion 
is at stake, I may be excused for being a little warm. You may 
think it better, gentlemen, to be warm here than in Smithfield, 
Discharge your consciences as you ought to do. If guilty, let the 
prisoner take the reward of his crime, for perchance it may be a 
terror to the rest. I hope I shall never go to that heaven where 
men are made saints for killing kings.” 

The verdict of guilty being recorded, Scroggs, C. J. said, “ Now, 
you may die a Roman Catholic; and, when you come to die, I 
doubt you will be found a priest too. ‘The matter, manner, and 
all the circumstances of the case make it plain; you may harden 
your heart as much as you will, and lift up your eyes, but you 
seem, instead of being sorrowful, to be obstinate. Between God 
and your conscience be it; I have nothing to do with that; my 
duty is only to pronounce judgment upon you according to law — 
you shall be drawn to the place of execution, where you shall be 
hanged by the neck, cut down alive,” &c. &c. 

The unhappy convict’s friends were allowed to give him 
decent burial; but, because they said a mass for his soul, his 
body was, by order of Lord Chief Justice. Scroggs, taken 
out of the grave, his quarters were fixed upon the gates of 
the City, and his head, at the top of a pole, was set on Lon- 
don Bridge. So proud was Scroggs of this exploit, that he 


* Sir E. Godfrey. 


LIFE OF CHIEF JUSTICE SCROGGS. 


had an account of it written, for which he granted an IM- 
PRIMATUR, signed with his own name.* 

I must not run the risk of disgusting my readers by a de- 
tailed account of Scroggs’s enormities on the trials of Cole- 
man, Ireland, Whitebread, Langhorn, and the other victims 
whom he sacrificed to the popular fury under pretence that 
they were implicated in the Popish Plot. Whether sitting in 
his own court at Westminster, or at the Old Bailey in the City 
of London, as long as he believed that Government favoured 
the prosecutions, by a display of all the unworthy arts of 
cajoling and intimidation he secured convictions. A modern 
historian, himself a Roman Catholic priest, says, with temper 
and discrimination, ‘* The Chief Justice Scroggs, a lawyer of 
profligate habits and inferior acquirements, acted the part of 
prosecutor rather than of judge. To the informers he be- 
haved with kindness, even with deference, suggesting to them 
explanations, excusing their contradictions, and repelling the 
imputation on their characters; but the prisoners were re- 
peatedly interrupted and insulted; their witnesses were brow- 
beaten from the bench, and their condemnation was generally 
hailed with acclamations, which the Court rather encouraged 
than repressed.” f 

Meanwhile the Chief J ustice went the circuit ; and although 
the. Popish Plot did not extend into the provinces, it may be 
curious to see how he demeaned himself there. Andrew 
Bromwich being tried before him capitally, for having ad- 
ministered the sacrament of the Lord’s Supper according to 
the rites of the Church of Rome, thus the dialogue be- 
tween them proceeded : — 

Prisoner: “I desire your Lordship will take notice of one 
thing, that I have taken the oaths of allegiance and supremacy, 
and have not refused anything which might testify my loyalty.” 
Scroggs, C.J.: “ That will not serve your turn; you priests have 
many tricks. What is that to giving a woman the sacrament 
several times?” Prisoner: “ My Lord, it was no sacrament unless 
I be a priest, of which there is no proof.” Scroggs: “ What! 


* 6 St. Tr. 1501—1512. For this he probably received a good sum of 
money. 
t Lingard, xii. 161. See 7 St. Tr. 1—591. 


11 


CHAP. 
XIX, 


A.v. 1679, 
Other 
murders 
committed 
by Scroggs, 


Trial of a 
Popish 
priest, 


12 


CHAP. 
XIX. 


A.D. 1679, 


1680. 


Scroggs 
changes 
sides. 


REIGN OF CHARLES II. 


you expect we should prove you a priest by witnesses, who saw 
youordained? We know too much of your religion; no one gives 
the sacrament in a wafer, except he be a popish priest: you gave 
that woman the sacrament in a wafer; ergo, you are a popish 
priest.” Thus he summed up: “ Gentlemen of the Jury, I leave it 
upon your consciences whether you will let priests escape, who 
are the very pests of Church and State ; you had better be rid of 
one priest than three felons; so, gentlemen, I leave it to you.” 

After a verdict of GuILTY, the Chief Justice said, “* Gen- 
tlemen, you have found a good verdict, and if I had been one 
of you I should have found the same myself.” He then pro- 
nounced sentence of death, describing what seemed to be his 
own notion of the Divine Being, while he imputed this blas- 
phemy to the prisoner,—‘ You act as if God Almighty 
were some omnipotent mischief, that delighted and would be 
served with the sacrifice of human blood.” * 

Scroggs was more and more eager, and “ranted on that 
side more impetuously,”t when he observed that Lord 
Shaftesbury, who, although himself too shrewd to believe in 
the Popish Plot, had been working it furiously for his own 
purposes, was taken into office on the formation of Sir Wil- 
liam Temple’s new scheme of administration, and was actually 
made President of the Council. But he began to entertain 
a suspicion that the King had been acting a part against his 
inclination and his judgment, and, having ascertained the real 
truth upon this point, he showed himself equally versatile and 
violent by suddenly going over to the opposite faction. Roger 
North gives the following racy account of his conversion : — 

“ Tt fell out that when the Earl of Shaftesbury had sat some 
short time in the Council, and seemed to rule the roast, yet Scroggs 
had some qualms in his politic conscience; and coming from 
Windsor in the Lord Chief Justice North’s coach, he took the op- 
portunity and desired his Lordship to tell him seriously if my 
Lord Shaftesbury had really so great power with the King as he 
was thought to have. His Lordship answered quick, ‘ No, my 
Lord, no more than your footman hath with you.’ Upon that the 
other hung his head, and, considering the matter, said nothing for 
a good while, and then passed to other discourse. After that time 


* 7 St. Tr. 715—730. + Roger North. 


LIFE OF CHIEF JUSTICE SCROGGS. 


he turned as fierce against Oates and his plot as ever before he 
had ranted for it.” * 

The first Popish Plot case which came on after this con- 
version was the trial of Sir George Wakeman, the Queen’s 
physician, against whom Oates and Bedloe swore as stoutly 
as ever; making out a case which implicated, to a certain 
degree, the Queen herself. But Chief Justice Scroggs now 
sneered at the marvellous memory or imagination of Oates ; 
and, taking very little notice, in his summing up, of the evi- 
dence of Bedloe, thus concluded : — 

“Tf you are unsatisfied upon these things put together, and, 
well weighing, you think the witnesses have not said true, you 
will do well to acquit.” Bedloe: “ My Lord, my evidence is not 
right summed up.” Scroggs, C.J.: “I know not by what au- 
thority this man speaks. Gentlemen, consider of your verdict.” 

An acquittal taking place, not only were Oates and Bedloe 
in a furious rage, but the mob were greatly disappointed, for 
their belief in the plot was still unshaken, and Scroggs, who 
had been their idol a few hours ago, was in danger of being 
torn in pieces by them. Although he contrived to escape in 
safety to his house, he was assailed next»morning by broad- 
sides, ballads sung in the streets, and libels in every imagina~ 
ble shape. 

On the first day of the following term, he bound over in 
open court the authors, printers, and singers of some of the 
worst of them, and made the following speech : — 

“IT would have all men know, that Iam not so revengeful in 
my nature, nor so nettled with this aspersion, that I could not have 
passed by this and more ; but the many scandalous libels that are 
abroad, and reflect on public justice as well as upon my private 
self, make it the duty of my place to defend one, and the duty I 
owe to my reputation to vindicate the other. This is the pro- 
perest occasion for both. If once our courts of justice come to be 
awed or swayed by vulgar noise, it is falsely said that men are 
tried for their lives or fortunes; they live by chance, and enjoy 
what they have as the wind blows, and with the same certainty. 
Such a base fearful compliance made Felix, willing to please the 
people, leave Paul bound. The people ought to be pleased with 


* Life of Guilford, i. 297. 
' + “ By his zeal in the Protestant cause he gained for a while an universal 
applause throughout the whole nation,” — Athene, iy. 116. 


13 


CHAP, 
XIX. 


A.D. 1680, 
He pro- 
cures the 
acquittal of 
Sir George 
Wakeman. 


Attacks on 
Chief Jus- 
tice 
Scroggs. 


Eloquent 

speech by 

him in his 
own vindi-+ 
cation. 


14 


CHAP: 
XIX. 


A.D. 1680. 


REIGN OF CHARLES II. 


public justice, and not justice seek to please the people. Justice 
should flow like a mighty stream; and if the rabble, like an unruly 
wind, blow against it, the stream they made rough will keep its 
course. I do not think that we yet live in so corrupt an age that 
a man may not with safety be just, and follow his conscience; if 
it be otherwise, we must hazard our safety to preserve our in- 
tegrity. As to Sir George Wakeman’s trial, I am neither afraid 
nor ashamed to mention it. I will appeal to all sober and under- 
standing men, and to the long robe more especially, who are the 
best and properest judges in such cases, for the fairness and equality 
of my carriage on that occasion. For those hireling scribblers 
who traduce me, who write to eat and lie for bread, I intend to 
meet with them another way, for, like vermin, they are only 
safe while they are secret. And let those vipers, those printers 
and booksellers by whom they vend their false and braided ware, 
look to it; they shall know that the law wants not power to punish 
a libellous and licentious press, nor I resolution to put the law in 
force. And this is all the answer fit to be given (besides a whip) 
to those hackney writers and dull observators that go as they are 
hired or spurred, and perform as they are fed. If there be any 
sober and good men that are misled by false reports, or by sub- 
tlety deceived into any misapprehensions concerning that trial or 
myself, I should account it the highest pride and the most scorn- 
ful thing in the world if I did not endeavour to undeceive them. 
To such men, therefore, I do solemnly declare in the seat of jus- 
tice, where I would no more lie or equivocate than I would to 
God at the holy altar, I followed my conscience according to the 
best of my understanding in all that trial, without fear, favour, or 
reward, without the gift of one shilling, or the value of it directly 
or indirectly, and without any promise or expectation whatso- 
ever.* Do any think it an even wager, whether I am the greatest 
villain in the world or not—one that would sell the life of the King, 
my religion, and country, to Papists for money? He that says 
great places have great temptations, has a little if not a false 
heart himself. Let us pursue the discovery of the plot in God’s 
name, and not baulk anything where there is suspicion on reason- 
able grounds; but do not pretend to find what is not, nor count 
him a turncoat that will not betray his conscience nor believe 
incredible things. ‘Those are foolish men who think that an 


* From this asseveration a suspicion arises of pecuniary corruption, but I 
believe that Scroggs was swayed in this instance by a disinterested love of 
raseality. 


LIFE OF CHIEF JUSTICE SCROGGS. 


acquittal must be wrong, and that there can be no justice without 
an execution.” * 

Many were bound over; but I do not discover more than 
one prosecution brought to trial,—that against Richard 
Radly, who was convicted of speaking scandalous words of 
the Lord Chief Justice Scroggs, and fined 2002. 

When the Earl of Castlemaine—the complaisant husband 
of the King’s mistress — was brought to trial for being con- 
cerned in the Plot, Scroggs was eager to get him off, still 
despising popular clamour. Bedloe being utterly ruined in 
reputation, Dangerfield was now marched up, as the second 
witness, to support Oates. He had been sixteen times con- 
victed of infamous offences; and, to render him competent, a 
pardon under the great seal was produced. But the Chief 
Justice was very severe upon him, saying, in summing up, to 
the jury, “ Whether this man be of a sudden become a saint 
because he has become a witness, I leave that to you to con- 
sider. Now I must tell you, though they have produced two 
witnesses, if you believe but one, this is insufficient. In 
treason, there being two witnesses, the one believed, the other 
disbelieved, may there be a conviction? I say, no. Let us 
deal fairly and above board, and so preserve men who are 
accused and not guilty.” The defendant being acquitted, the 
Chief Justice was again condemned as a renegade. 

He further made himself obnoxious to the charge of having 
gone over to the Papists, by his conduct on the trial of Mrs, 
Elizabeth Cellier, who, if she had been prosecuted while he 
believed that the Government wished the Plot to be con- 
sidered real, would unquestionably have been burnt alive 
for high treason, but now was the object of his especial pro- 
tection and favour. The second witness against her was 
Dangerfield, who, when he was put into the box, before any 
evidence had been given to discredit him, was thus saluted by 
Chief Justice Scroggs : — 

* We will not hoodwink ourselves against such a fellow as this, 
that is guilty of such notorious crimes. A man of modesty, after 
he hath been in the pillory, would not look a man in the face. 
Such fellows as you are, sirrah, shall know we are not afraid of 

* 7 St. Tr. 687—706. t Ibid. 1067—1112. 


Acquittal 
of the Earl 
of Castle- 


maine; 


and of Mrs, 
Cellier. 


Dialogue 
with Dan- 
gerfield. 


16 


CHAP. 
XIX, 


A.D. 1680. 


Ingenious 
scheme to 
extinguish 
the liberty 
of the 
press. 


REIGN OF CHARLES IT. 


you. It is notorious enough what a fellow this is. I will shake 
all such fellows before I have done with them.” Dangerfield: 
** My Lord, this is enough to discourage a man from ever enter- 
ing into an honest principle.” Scroggs, C.J: “ What? Do you, 
with all mischief that hell hath in you, think to have it in a court 
of justice ? I wonder at your impudence, that you dare look a 
court of justice in the face, after having been made appear so 
notorious a villain. Come, gentlemen of the jury, this is a plain 
case; here is but one witness in a case of treason ; therefore lay 
your heads together, and say not guilty.” 

Mrs. Cellier was set at liberty, and Dangerfield was com- 
mitted to occupy her cell in Newgate.* 

When holding assizes in the country, he took every oppor- 
tunity of proclaiming his slavish doctrines. Going the Oxford 
Circuit with Lord Chief Baron Atkyns, he told the grand jury 
that a petition from the Lord Mayor and citizens of London 
to the King, for calling a parliament, was high treason. 
Atkyns, on the contrary, affirmed “that the people might 
petition the King, and, so that it was done without tumult, 
it was lawful.” Scroggs, having peremptorily denied this, went 
on to say that “the King might prevent printing and -pub- 
lishing whatever he chose by proclamation.” Atkyns mildly 
remarked, “that such matters were fitter for parliament, and 
that, if the King could do this work of parliament, we were 
never like to have parliaments any more.” Scroggs, highly 
indignant, sent off a despatch to the King, stating the uncon- 
stitutional and treasonable language of Chief Baron Atkyns. 
This virtuous Judge was in consequence superseded, and re- 
mained in a private station till he was reinstated in his office 
after the Revolution.f 

Before Scroggs was himself prosecuted and dismissed from 
his office with disgrace, he swelled the number of his delin- 
quencies by an attack on the liberty of the press, which was 
more violent than any that had ever been attempted by the 
Star Chamber, and which, if it had been acquiesced in, would 
have effectually established despotism in this country. Here 
he was directly prompted by the Government, and it is sur- 
prising that this proceeding should so little have attracted 


* 7 St. Tr. 1018—T1055. { 5 Parl. Hist. 309. 


LIFE OF CHIEF JUSTICE SCROGGS. 


the notice of historians who have dwelt upon the arbitrary 
measures of the reign of Charles II. The object was to put 
down all free discussion, and all complaints against misrule, by 
having, in addition to a licenser, a process of injunction against 
printing, — to be summarily enforced, without the interven- 
tion of a jury, by fine, imprisonment, pillory, and whipping. 
There was then in extensive circulation a newspaper called 
“The Weekly Pacquet of Advice from Rome, or the His- 
tory of Papacy,” which reflected severely upon the religion 
now openly professed by the Duke of York and secretly 
embraced by the King himself. In Trinity Term, 1680, an 
application being made to the Court of King’s Bench on the 
ground that this newspaper was libellous, Scroggs, with the 
assent of his brother Judges, granted a rule absolute in the 
first instance, forbidding the publication of it in future.* The 
editor and printer being served with the rule, the journal was 
suppressed till the matter was taken up in the House of 
Commons, and Scroggs was impeached. 

The same term, he gaye the crowning proof of his servility 
and contempt of law and of decency. Shaftesbury, to pave the 
way for the Exclusion Bill, resolved to prosecute the Duke 
of York as a * Popish recusant.” ‘The heir presumptive to 
the throne was clearly liable to this proceeding and to all the 
penalties, forfeitures, and disqualifications which it threatened, 
for he had been educated a Protestant, and, having lately 
returned from torturing the Covenanters in Scotland, he was 
in the habit of ostentatiously celebrating the rites of the 
Romish religion in his chapel in London. An indictment 
against him was prepared in due form, and this was laid 
before the grand jury for the county of Middlesex by Lord 
Shaftesbury, along with Lord Russell, Lord Cavendish, 
Lord Grey de Werke, and other members of the country 
party. This alarming news being brought to Scroggs while 
sitting on the bench, he instantly ordered the grand jury to 
attend in court. The bailiff found them examining the first 


* « Die Mercurii proxima post tres septimanas Sancte Trinitatis Anno 
32 Car. II. Regis, Ordinatum est quod Liber intitulat. The Weekly Pacquet 
of Advice from Rome, or the History of Popery, non ulterius imprimatur vel 
publicetur per aliquam personam quamcunque. Per Cur.”—8 Sé. Tr, 198. 


VOL, II. Cc 


17 


CHAP. 
SKS 





A.D. 1680. 


Scroggs 
frustrates 
the attempt 
to indict 
the Duke 
of York as 
a Popish 
recusant by 
discharging 
the grand 
jury. 


June 16. 


18 


CHAP. 
XIX. 


A.D. 1680. 


Charges 
against 
Scroggs 
before the 
King in 
Council, 


REIGN OF CHARLES II. 


witness in support of the indictment; but they obeyed orders. 
As soon as they had entered the court, the Chief Justice 
said to them, ‘‘ Gentlemen of the grand jury, you are dis- 
charged, and the country is much obliged to you for your 
services.” 

It would have been consolatary to us, in reading an account 
of the base actions of Scroggs, if we could have looked for- 
ward to his suffering on a scaffold like Tresilian, or dying 
ignominiously in the Tower of London like Jeffreys. He 
escaped the full measure of retribution which he deserved, but 
he did not go unpunished. 

There were two classes whom he had offended, of very 
different character and power, — the witnesses in support of 
the Popish Plot, and the Exclusionist leaders. The first be- 
gan by preferring Articles against him to the King in Council, 
which alleged, among other things, that at the trial of Sir 
George Wakeman “ he did brow-beat and curb Dr. Titus 
Oates and Captain Bedloe, two of the principal witnesses for 
the King, and encourage the jury impannelled to try the 
malefactors to disbelieve the said witnesses, by speaking of © 
them slightingly and abusively, and by omitting material 
parts of their evidence: That the said Chief Justice, to ma- 
nifest his slighting opinion of the evidence of the said Dr. 
Titus Oates and Captain Bedloe in the presence of his most 
sacred Majesty and the Lords of his Majesty’s most honour- 
able Privy Council, did dare to say that Dr. Titus Oates and 
Captain Bedloe always had an accusation ready against any 
body: That the said Lord Chief Justice is very much ad- 
dicted to swearing and cursing in his common discourse, and 
to drink to excess, to the great disparagement of the dignity 
and gravity of his office.” 

It seems surprising that such charges from such a quarter, 
against so high a magistrate, should have been entertained, 
although he held his office during the pleasure of the Crown. 
The probability is that, being in fayour with the Govern- 
ment, it was considered to be the most dextrous course to 
give him the opportunity of being tried before a tribunal by 
which he was sure of being acquitted, in the hope that his 


LIFE OF CHIEF JUSTICE SCROGGS. 


acquittal would save him from the fangs of an enraged House 
of Commons. 

He was required to put in an answer to the Articles, and a 
day was appointed for hearing the case. When it came on, 
to give greater éclat to the certain triumph of the accused, 
the King presided in person. Oates and Bedloe were heard, 
but they and their witnesses were constantly interrupted and 
stopped, on the ground that they were stating what was not 
evidence, or what was irrelevant; and, after a very eloquent 
and witty speech from the Chief Justice, in the course of 
which he caused much merriment by comments on his sup- 
posed immoralities, judgment was given that the complaints 
against him were false and frivolous. 

But Shaftesbury was not so easily to be diverted from his 
revenge. On the meeting of parliament, he caused a motion 
to be made in the House of Commons for an inquiry into the 
conduct of Lord Chief Justice Scroggs in discharging the 
Middlesex grand jury and in other matters. A committee 
was accordingly appointed, which presented a report recom- 
mending that he should be impeached. The report was 
adopted by a large majority, and Articles of Impeachment 
were voted against him. These were eight in number. ‘The 
Jirst charged in general terms “ that the said William Scroggs, 
Chief Justice of the King’s Bench, had traitorously and 
wickedly endeavoured to subvert the fundamental laws, and 
the established religion and government of the kingdom of 
England.” The second was for illegally discharging the 
grand jury, “ whereby the course of justice was stopped ma- 
liciously and designedly, — the presentments of many Papists 
and other offenders were obstructed,—and in particular a bill 
of indictment against James Duke of York, which was then 
before them, was prevented from being proceeded upon.” 
The third was founded on the illegal order for suppressing the 
Weekly Pacquet newspaper. The three following articles 
were for granting general warrants, for imposing arbitrary 
fines, and for illegally refusing bail. The seventh charged him 
with defaming and scandalising the witnesses who proved the 
Popish Plot. The last was in these words: “ VIII. Whereas 
the said Sir William Scroggs, being advanced to be Chief 


c 2 


“a 


19 


CHAP. 
XIX. 


A.D. 1680, 


He is ac- 
quitted. 


Nov. 23. 
Proceed- 
ings 
against 
him in the 
House of 
Commons, 


Dec. 23. 


20 


CHAP. 
XIX. 


Articles of 
impeach- 
ment car- 
ried up to 
the Lords. 


He is saved 
by the 

sudden dis- 
solution of 
parliament. 


REIGN OF CHARLES Ii. 


Justice of the Court of King’s Bench, ought, by a sober, grave, 
and virtuous conversation, to have given a good example to the 
King’s liege people, and to demean himself answerable to the 
dignity of so eminent a station; yet, on the contrary thereof, 
he doth, by his frequent and notorious excesses and de- 
baucheries, and his profane and atheistical discourses, daily 
affront Almighty God, dishonour his Majesty, give coun- 
tenance and encouragement to all manner of vice and wicked- 
ness, and bring the highest scandal on the public justice of 
the kingdom.” 

These articles were carried to the House of Peers by 
Lord Cavendish, who there, in the name of all the Commons 
of England, impeached Chief Justice Scroggs for “ high 
treason, and other high crimes and misdemeanors.” 

The articles being read, the accused, who was present, 
sitting on the Judge’s woolsack, was ordered to withdraw. 
A motion was then made that he be committed; but the 
previous question was moved and carried, and a motion for 
an address to suspend him from his office till his trial should 
be over was got rid of in the same manner. He was then 
called in, and ordered to find bail in 10,0002, to answer the 
articles of impeachment, and to prepare for his trial. 

Luckily for him, at the end of three days the parliament 
was abruptly dissolved. It would have been difficult to make 
out that any of the charges amounted to high treason ; but in 
those days men were not at all nice about such distinctions, 
and a dangerous but convenient doctrine prevailed, that, 
upon an impeachment, the two Houses of Parliament might 
retrospectively declare anything to be treason, according to 
their discretion, and punish it capitally. At any rate, con- 
sidering that the influence of Shaftesbury in the Upper House 
was so great, and that Halifax and the respectable anti- 
exclusionists could not have defended or palliated the infamous 
conduct of Scroggs, had his case come to a hearing, he could 
not have got off without some very severe and degrading 
punishment. 

Although he escaped a judicial sentence, his character was 
so blown upon, and juries regarded him with such horror 
and were so much inclined to go against. his direction, that 


LIFE OF CHIEF JUSTICE SCROGGS. 


the Government found that he would obstruct instead of 
facilitating their designs against the Whig leaders, and that 
it was necessary to get rid of him. After the dissolution of 
the Oxford parliament the Court was completely triumphant, 
and, being possessed for a time of absolute power, had only 
to consider the most expedient means of perpetuating des- 
potism, and wreaking vengeance on the friends of freedom. 
Before long, Russell, Sydney, and Shaftesbury were to be 
brought to trial, that their heads might pay the penalty of 
the Exclusion Bill; but if Scroggs should be their judge, any 
jury, whether inclined to Protestantism or to Popery, would 
probably acquit them. 

Accordingly, in the beginning of April, to make room for 
one who, it was hoped, would have more influence with juries, 
and make the proceedings meditated against the City of 
London and other corporations pass off with less discredit, 
while he might be equally subservient, Sir William Scroggs 
was removed from his office of Chief Justice of the King’s 
Bench. So low had he fallen, that little regard was paid to 
his. feelings, even by those for whom he had sacrificed his 
character and his peace of mind; and, instead of a “ resigna- 
tion on account of declining health,” it was abruptly announced 
to him that a supersedeas had issued, and that Sir FRANCIS 
PEMBERTON, who had been a puisne judge under him, was 
to succeed him as Chief Justice. 

His disgrace caused general joy in Westminster Hall, and 
over all England; for, as Jeffreys had not yet been clothed 
in ermine, the name of Scroggs was the by-word to express 
all that could be considered loathsome and odious in a judge. 

He was allowed a small pension, or retired allowance, 
which he did not long enjoy. When cashiered, finding no 
sympathy from his own profession, or from any class of the 
community, he retired to a country house which he had pur- 
chased, called Weald Hall, near Brentwood, in Essex. Even 
here his evil fame caused him to be shunned. He was consi- 
dered by the gentry to be without religion and without honour; 
while the peasantry, who had heard some vague rumours of 
his having put people to death, believed that he was a mur- 


derer, whispered stories of his having dealings with evil spirits, 
c 3 


21 


CHAP: 
XIX, 





A.D. 1681. 
Reasons for 
cashiering 

‘ Oo 
him, 


He is 
cashiered. 


He retires 
into the 
country, 


22 


CHAR: 
XIX. 





A.D. 1683. 


Tis death. 


His cha- 
racter. 


REIGN OF CHARLES II. 


and took special care never to run the risk of meeting him 
after dark. His constitution was undermined by his dissolute 
habits ; and, in old age, he was still a solitary selfish bachelor. 
After languishing, in great misery, till the 25th day of 
October, 1683, he then expired, without a relation or friend 
to close his eyes. He was buried in the parish church of 
South Weald; the undertaker, the sexton, and the parson of 
the parish, alone attending the funeral. He left no descend- 
ants; and he must either have been the last of his race, or his 
collateral relations, ashamed of their connection with him, 
had changed their name, — for, since his death, there has been 
no Scroggs in Great Britain or Ireland. The word was long 
used by nurses to frighten children; and as long as our 
history is studied, or our language is spoken or read, it will 
call up the image of a base and bloody-minded villain. With 
honourable principles, and steady application, he might have 
been respected in his lifetime, and left an historical reputation 
behind him. ‘ He was a person of very excellent and nimble 
parts,”* and he could both speak and write our language 
better than any lawyer of the 17th century, Francis Bacon 
alone excepted. He seems to have been little aware of the 
light in which his judicial conduct would be viewed; for it 
is a curious fact that the published Reports of the State 
Trials at which he presided were all revised and retouched by 
himself; and his speeches, which fill us with amazement and 
horror, he expected would be regarded as proofs of his spirit 
and his genius. Thank Heaven, we have no such men in 
our generation: it is better for us to contemplate dull, moral 
mediocrity, than profligate eccentricity, however brilliant it 
may be. t | 
Scroggs may be considered as having been of some use to 
his country, by making the character of a wicked judge so 
frightfully repulsive that he may have deterred many from 


* ‘Wood. 

t One of the charges against him was, that he made a traffic in selling to 
booksellers the exclusive right of publishing trials before him. It was said he 
bargained to receive 150 guineas for the Report of Sir George Wakeman’s 
trial, and 100 guineas more if it was not finished in one day. 

¢ See 8 St. Tr. 163—224, 


LIFE OF CHIEF JUSTICE SCROGGS. 


giving way to his bad propensities. Dean Swift says, “I 
have read somewhere of an Eastern king who put a judge to 
death for an iniquitous sentence, and ordered his hide to be 
stuffed into a cushion, and placed upon the tribunal for the 
son to sit on, who was preferred to his father’s office. I fancy 
such a memorial might not have been unuseful to a son of 
Sir William Scroggs; and that both he and his successors 


would often wriggle in their seats as long as the cushion 
lasted.” * 


* ‘Drapier’s Letters, No. V. See 2 Shower, 155,; 1 Ventris, 329. 354.; Macph. 
State Papers, i. 106. 


23 


CHAP. 
XIX. 





24 


CHAP. 
XX. 


Glance at 
the career 
and cha- 
racter of 
Sir Francis 
Pember- 
ton, 


REIGN OF CHARLES II, 


CHAPTER XX. 


LIFE OF LORD CHIEF JUSTICE PEMBERTON. 


THE career of our next Chief Justice is more chequered by 
extraordinary vicissitudes than that of any legal dignitary 
mentioned in the annals of Westminster Hall. While yet a 
youth, he had wasted his substance by riotous living, and 
incurred enormous debts. Without education, without cha- 
racter, without friends, a slave to the worst propensities and 
habits, he was deprived of his liberty and became the asso- 
ciate of the most profligate of mankind. As the law then 
stood, there were no means of ever obtaining his liberation 
without satisfying the demands of his creditors, and there 
seemed a certainty that he must sink deeper and deeper in 
misery and in depravity till he expired in his cell. But a 
prison served him for a school, for a university, and for an 
inn of court. Here he became an elegant scholar, a profound 
lawyer, and qualified to run the race of honourable rivalry 
with those who had taken full advantage of regular tuition 
and training. By his own exertions, while still a prisoner, 
he not only maintained himself creditably, but made an ar- 
rangement for the discharge of all his pecuniary engagements. 
Starting at the bar, though he was at first taunted as a “ gaol- 
bird,” he was soon run after as a distinguished advocate; and 
he attained the highest honours of his profession. When he 
was placed on the bench and it might have been thought 
that his adventures were at an end, the remarkable strokes 
of adverse and auspicious fortune to which he was destined 
were only beginning. Thrice was he removed from high 
judicial situations, which he filled with credit, by the rude 
hand of arbitrary power. Again and again he recommenced 
pleading causes for clients in the courts in which he had 
presided. After trying Lord Russell, he was counsel for the 
Seven Bishops. The Revolution brought him no repose. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


Having been punished, by Charles II. and James II., for 
imputed judicial independence, and supposed leaning to liberal 
principles, he was sent to Newgate by the Convention Par- 
liament on the charge of favouring despotism and violating 
the privileges of the House of Commons. His character, 
likewise, from “its varied and delicate lights and shadows, 
presents an interesting subject for contemplation. We be- 
come a little tired of Hale, from his uniform goodness; and 
we are sure that, on every occasion, Scroggs will show himself 
sordid and cruel. There being no struggle in the mind of 
either of them, we may at last regard the one with apathy, 
and the other with unmixed disgust. Pemberton, when he 
entered public life, felt a passion for preferment, by which he 
was sometimes led to do what was wrong. But he hada 
conscience: when he transgressed the line of rectitude he 
was visited by remorse; and, though he yielded to com- 
pliances which he condemned, yet, rather than recklessly 
follow the example of some unscrupulous judges who were 
his contemporaries, he was willing to sacrifice the objects 
which were dearest to his heart. Thus he might have been 
addressed : — 


. © Thou wouldst be great ; 
Art not without ambition; but without 
The illness should attend it. What thou wouldst highly, 
That wouldst thou holily ; wouldst not play false, 
And yet wouldst wrongly win.” 


He was descended from the Pembertons of Pemberton in 
the county of Lancaster. His father, who was of a junior 
branch of that family, had been a merchant in London, and 
had died while still a young man, leaving a considerable for- 
tune to be divided among five infant children. These were 
all carried off by the small-pox except Francis, in whom, 
therefore, the whole property centred. It would have been 
well for him if his mother had died at the same time; for 
she was a silly woman, and spoiled him by excessive in- 
dulgence. After her husband’s death, she took a house in 
the town of St. Alban’s, where she had some relations; and 
young Frank was put to school there. His parts were very 
lively, and he could learn much in a little time ; but he was 
sickly, and, under pretence of nursing him, she kept him 


- 


His origin 
and edu- 
cation, 


26 


CHAP. 
XX. 


A.D. 1640. 


At Cam- 
bridge, 


He is en- 
tered at the 
Temple, 


His profli- 
gate mode 
of life, 


A.D. 1646, 


He wastes 
his patri- 
mony. 


REIGN OF CHARLES II. 


almost constantly idle at home. At fifteen he could read 
and write pretty well, and had picked up a little smattering 
of Greek and Latin. He was then sent to Emanuel College, 
Cambridge *, and there he remained above four years; but, 
although he contrived to take the degree of B. A., it was 
remarked by his tutor, Dr. Benjamin Whitchcote, that, “ not- 
withstanding all the pains taken upon him, from his giddiness, 
and the difficulty of fixing his attention, when he left Cam- 
bridge he had little more knowledge of books than he brought 
with him from St. Alban’s.” 

To finish his education it was resolved to send him to an 
Inn of Court; and on the 14th of October, 1645, he was 
admitted a member of the Honourable Society of the Inner 
Temple.t There was no expectation of his following the 
law as a profession; but, the civil war being extinguished, 
young men of family and fortune again attended “ Readings ” 
and ‘‘ Moots,” that they might acquire enough of law to 
qualify them to manage their estates and to act as Justices 
of the Quorum. 

While at Cambridge, although Pemberton had been idle 
and listless, his morals had remained uncontaminated ; but 
he now made the acquaintance of a set of young men who 
initiated him in all sorts of debauchery. Several of them had, 
for a short time, carried arms for the King, and thought that 
they could still safely show their hatred of the Roundheads 
by outvying the licentiousness which had distinguished the 
Cavaliers when they were serving in the field. The follow- 
ing year Pemberton was of age, and, according to his father’s 
will, he came into possession of his fortune. This was 
speedily known to his dissolute companions, some of whom 
were in great pecuniary difficulties and driven to live upon 
their wits. Besides taverns, theatres, and other such places 
of dissipation, they carried him to gaming-houses, engaged 
him in deep play, and, in the course of eighteen months, 
stript him of every Carolus he had in the world. More than 
this, they not only led him to contract large debts for clothes, 


* Admitted 12th August, 1640. 
+ He is described as son of Radulph Pemberton, of St. Alban’s in the county 
of Herts, Esq. 


LIFE OF CHIEF JUSTICE PEMBERTON 


wine, horses, &c., for his own use, but to become surety for 
them to tradesmen and money-changers. In consequence, 
his mortgaged lands were foreclosed or taken under elegits ; 
judgements being entered upon the bonds and statutes which 
he gave to his creditors, all his moveables were swept away 
under fi. fas. ; and at length a relentless Jew, who had lately 
returned into England, from which the race had been ba- 
nished since the time of Edward I., sued out a ca. sa., against 
him for a large sum of money borrowed to pay a gaming debt, 
and shut him up in the Fleet. é 
He had not been sober for many weeks, and it was some 
time before he could fully understand where he was and 
what had befallen him. Amidst the squalor which sur- 
rounded him, he was surprised to find loud revelry going 
forward, and he recognised faces that he had seen in the 
haunts of vice which he had been in the habit of frequenting. 
He was obliged to pay the garnish which they demanded of 
him; but he resolutely refused to join in their orgies. He 
awoke, as it were, from a dream, and was at first almost 
entirely overpowered by the horrors of his situation. He 
used afterwards to relate “ that some supernatural influence 
seemed to open his eyes, to support him, and to make a new 
man of him.” He contrived to get a small dismal room for 
his own use without a chum, and in this he shut himself up. 
He tasted nothing but the bread and water which were the 
prison allowance; and his share of some charitable doles 
arising from fees on the last day of term, and other such 
sources, he gave away to others. What we have chiefly 
to admire is, that he nobly resolved to suppply the defects 
of his education, — to qualify himself for his profession, — 
to pay his debts by industry and economy, —and to make 
himself respected and useful in the world. The _ resolu- 
tion was formed in a hot fit of enthusiasm, but it was per- 
severed in with cool courage, unflinching steadiness, and 
brilliant success. He was able to borrow books by the 
kindness of a friend of his father’s who came to visit him. 
Bitterly regretting the opportunities of improvement which 
he had neglected at school and at college, he devoted a cer- 
tain number of hours daily to the classics and to the best 


27 


CHAP. 
XX. 


A.D. 1647 
— 1650. 


He is con- 
fined for 
debt in the 
Fleet. 


His re- 
formation. 


28 


CHAP; 


XX. 


A.D. 1650 


—1652. 


REIGN OF CHARLES II. 


English writers — taking particular delight in Shakspeare’s 
plays, although the acting of them had ceased, and they were 
not yet generally read. The rest of his time he devoted to 
the Year-Booxs, to the more modern Reports, to the 
Abridgments, and to the compiling of a huge Common-place 
Book for himself, which might have rivalled Brooke, Rolle, 
and Fitzherbert. His mode of life was observed with amaze- 
ment and admiration by his fellow prisoners, who, knowing 
that he was a Templar, and that he was studying law night 
and day, concluded that he must be deeply skilled in his 
profession, and from time to time came to consult him in 
their own affairs, — particularly about their disputes with 
their creditors.* He really was of essential service to 
them in arranging their accounts, in examining the process 
under which they were detained, and in advising applications 
to the courts for relief. They, by and by, called him the 
“Councillor” and the “ Apprentice of the Law,” f and 
such as could afford it insisted on giving him fees for his 
advice. With these he bought books which it was necessary 
that he should always have by him for reference. ‘To add to 
his fund for this purpose, he copied and he drew law papers 
for the attorneys, receiving so much a folio for his perform- 
ances. By these means he was even able to pay off some of 
the smallest and most troublesome of his creditors. Burnet, 
whose love of the marvellous sometimes betrays him into 
exaggeration, although his sincerity may generally be relied 
upon, says that Pemberton lay many years in gaol;”t but 


* The Fleet was then by far the most populous civil prison, for it not only 
contained the debtors of the Court of Common Pleas, but all who were com- 
mitted by the Court of Chancery. 

} This used to be the designation of barristers till they were made serjeants. 

+ The passage is curious: ‘ His rise was so particular, that it is worth the 
being remembered. In his youth, he mixed with such lewd company, that he 
quickly spent all he had, and ran so deep in debt, that he was cast into a gaol, 
where he lay many years ; but he followed his studies so close in the gaol, that he 
became one of the ablest men of his profession.” — Own Times, ii. 144. Roger 
North, with much quaintness, adheres closer to the truth in his slight sketch of 
Pemberton: “ This man’s morals were very indifferent; for his beginnings 
were debauched, and his study and first practice in the gaol. For having been 
one of the fiercest town rakes, and spent more than he had of his own, his case 
forced him upon that expedient for a lodging ; and there he made so good use 
of his leisure, and busied himself with the cases of his fellow collegiates, whom 
he informed and advised so skilfully, that he was reputed the most notable 
fellow within those walls; and, at length, he came out a sharper at the law.” — 
Life of Guilford, ii. 123, 


LIFE OF CHIEF JUSTICE PEMBERTON. 


according to the best information I have been able to obtain, 
the period did not exceed five years. He obtained his dis- 
charge by entering into a very rational arrangement with his 
principal creditors. After pointing out to them the utter im- 
possibility of their being ever satisfied while he remained in 
custody, he explained to them the profitable career which was 
before him if he could recover his liberty, and he assured 
them of his determined purpose to pay them all every 
farthing that he owed them the moment that it was in his 
power to do so. Accordingly the Jew, after stipulating for 
compound interest, and taking a fresh security, signed a 
warrant for entering satisfaction, and, all the detainers being 
withdrawn, Pemberton could again see the green fields and 
breathe the pure air of heaven. * 

The creditable employment of his time in prison beame 
well known in the Inner Temple Hall, and he was welcomed 
there very cordially. Imprisonment for debt was by no 
means so degrading then as we are apt to suppose. Even so 
late as the reign of George III. a great leader of the Western 
Circuit was often obliged to avail himself of his privilege to 
be free from arrest; and I myself have conversed with men 
who remembered an eminent conveyancer, and an eminent 
special pleader, both continuing in very extensive business 
while confined in the King’s Bench prison. Pemberton’s 
errors were regarded as more yenial from the recollection of 
his extreme youth when his debts had been contracted, and of 
the manner in which he had been led astray by bad company. 

Having kept the requisite number of terms, and done all 
his exercises, on the 27th of November 1654 he was called 
to the bar.t Although inclined to monarchical principles, 

* At this time there were no “ Rules of the Fleet,” or district round the 
prison considered to be part of it; and all committed to it were kept in salvd 
et arctd custodid. This was not the first instance of legal studies going on within 


its walls. The famous treatise called FLeTa was written by a lawyer confined in 
the Fleet in the reign of Edward I, 

+ Books of Inner Temple — from which it appears that he was called to the 
bench on the 5th of February, 1671, and was elected Reader on 21st of January 
1674, His aims are in the Inner Temple Hall, with the following inscription: 

“ Franciscus Pemberton At 
Serviens ad legem. Elect. 
Lect. Quadra A° 1674.” 
I am indebted for this and much other valuable information to the kindness of 
Mr. Martin, the sub-treasurer of the Inner Temple. 


29 


CHAP. 
XX. 


A.D. 1652 
—1654. 
He makes 
an arrange- 
ment with 
his credi- 
tors and is 
discharged 
out of 
prison, 


He is 
called to 
the bar, 





His suc- 
cess. 


He is ap- 
pointed 

“ Devil” to 
the Attor- 
ney Ge- 
neral. 

A.D. 1668. 


He is made 
a Ser: 
jeant. 


Contest 
about him 
between 
the two 
Houses of 
Parlia- 
ment, 


REIGN OF CHARLES Il. 


he did not scruple to take the oath “ to be true to the Com- 
monwealth,” and he practised successively under the repub- 
lican Chief Justices Rolle, Glyn, and Newdigate. 

His rise into business was rapid. He first got mto prac- 
tice in the Palace Court at Westminster, —next in the Court 
of King’s Bench, —and before he had been seven years at 
the bar he had discharged all his debts, including principal 
and compound interest for the Jew — whom he now regarded 
as his best benefactor. 

Soon after the Restoration he became intimate with Sir 
Jeffrey Palmer, the Attorney General, and was employed as 
his “ Devil” to prepare indictments and argue demurrers. In 
a few years he was succeeded in this office by North (after- 
wards Lord Keeper Guilford); but he still held briefs in all 
state prosecutions as counsel for the Crown. He was al- 
lowed to conduct the trial of the apprentices charged with 
high treason because they had pulled down some disorderly 
houses in Moorfields, the Attorney General himself being 
ashamed to appear in it. Pemberton contented himself 
with a brief statement of the facts, leaving to Lord Chief 
Justice Kelynge the odium and the ridicule of laying down 
the law.* 

In Easter Term, 1675, he was called to the degree of 
Serjeant-at-law. From this time he seems to have been by 
far the most distinguished advocate practising at the English 
bar. He was leading counsel for the appellants in the famous 
appeals from the Court of Chancery to the House of Lords, in 
which members of the House of Commons were respondents. 

Now arose a dispute between the two Houses for the pos- 
session of his body, which had nearly ended in civil war. 
In spite of a resolution of the House of Commons that it 
would be a breach of their privileges for any lawyer to act 
in these appeals, Serjeant Pemberton, with becoming spirit, 
appeared at the bar of the House of Lords and argued stoutly 
for his clients. ‘The Commons therefore voted that he had 
been guilty of a breach of their privileges, and ordered him 
to be taken into custody by the Serjeant-at-arms ; but as 


* 6 St. Tr. 879.; ante, p. 508. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


soon as the order had been executed, the Lords passed a 
counter-resolution that it was a breach of their privileges to 
molest him for doing his duty under their sanction, — and 
ordered the officer of their house, the Usher of the Black 
Rod, to set him at liberty. It so happened, that the two 
champions met in the Court of Requests when the Serjeant- 
at-arms was conducting Pemberton to safer custody. The 
Usher of the Black Rod, with his attendants, gave the as- 
sault on the Serjeant-at-arms, who fled ignominously, and 
Pemberton was the prize of the victors. The Commons, in 
a fury, passed a violent resolution against the pusillanimity 
of their officer, and ordered that the man who had defied 
their power should be immediately recaptured. Serjeant 
Pemberton, not aware of this proceeding, and thinking 
that the danger was over, returned next morning to the 
practice of his profession in the Court of Common Pleas; 
but Speaker Seymour, who had been deeply mortified by 
the abasement of the assembly over which he presided, as he 
walked up Westminster Hall to occupy the chair, spied Ser- 
jeant Pemberton wearing his coif and party-coloured robes, 
—ran up to him, seized him, and, with the assistance of some 
messengers who were following in his train, lodged him in 
Little-Ease, the prison of the House of Commons, — from 
whence he was transferred to the Tower of London. The 
Lords next made an order on the Lieutenant of the Tower, 
requiring him to discharge the prisoner, and, when this was 
disobeyed, resorted to the novel expedient of issuing a writ 
of habeas corpus for bringing his body to their bar. The 
Commons, on the other hand, resolved “ that no person com- 
mitted by them for breach of privilege ought, by writ of 
habeas corpus or any other authority ~whatever, be made to 
appear in the House of Lords; that the writ of habeas corpus 
issued by the Lords for bringing up the body of Serjeant 
Pemberton was insufficient and illegal; and that they would 
protect their Serjeant-at-arms, the Lieutenant of the Tower, 
and all others who should obey the law by conforming to 
their orders.” 

Shaftesbury, who had brought about this quarrel on pur- 
pose to prevent the passing of the Test Act, had gained his 








32 


CHAP, 
XX, 


4.D. 1675 
— 1679. 


He is 
placed on 
the Bench 
as a Puisne 
Judge. 
April 30. 
1679. 


REIGN OF CHARLES II. 


object. The next step would have been a battle-royal be- 
tween the members of the two Houses, and, notwithstanding 
the disparity of numbers on the side of the Lords, they would 
have had powerful assistance from the mob, who on this occa- 
sion approved of their proceedings. As the only means of 
obviating so great a calamity, the King suddenly put an end 
to the session by a prorogation, and Serjeant Pemberton was 
set at liberty. It was allowed that during the whole affair 
he had conducted himself with perfect propriety, and he now 
stood very high in public estimation.* 

Although he felt a great desire for political advancement, 
he would not enter the House of Commons, and he could not 
make up his mind boldly to join either of the contending par- 
ties. He highly disapproved of the profligate measures of the 
CaBaL, and the succeeding administrations were little more to 
his mind; but he considered Shaftesbury, the leader of the 
patriots, as the most unprincipled statesman of the times, and 
he would sooner have died in obscurity than enlist under his 
banner. On the contrary, he professed a respect for the Earl 
of Danby, and he was loud in bestowing praise on Lord Chan- 
cellor Nottingham, who had proved himself the reformer, or 
rather founder, of our Equity code. 

With such scruples and such moderation, there seemed as 
yet little chance of his ever being made a Chief Justice in 
those violent times; but, enjoying much reputation as a 
lawyer, and having given no offence to either side, there was 
little surprise expressed when he was made a Puisne Judge 
of the King’s Bench, and was knighted. The object of his 
promotion probably was to support the dignity of that Court 
which had been very much lowered by the ignorance and 
brutality of Chief Justice Scroggs. 

Sir Francis gave satisfaction both as a Civil and Criminal 
Judge. In the former capacity, he caused some grumbling 
among the old stagers by showing, as they alleged, too little 
respect for precedent and authority; but he was deeply 
versed in jurisprudence as a science, and he thought it better 
to be governed by a right principle than by a wrong decision. 
He sat both in the King’s Bench and at the Old Bailey, on 

* 6 St. Tr. 1121—1188, 


LIFE OF CHIEF JUSTICE PEMBERTON. 


the trial of the principal persons said to be implicated in the 
Popish Plot. 


33 


CHAP. 
XX, 


Sometimes he gently interfered to mitigate the ferocity of . | j679, 


his Chief, —as when he prevailed in having a chair placed 
for a prisoner at the bar who was unable to stand*; and 
when he got off a bookseller, convicted of publishing a libel, 
with fine, imprisonment, and pillory, — whom Scroggs wished 
likewise to have whipped publicly at the cart’s tail.t But he 
never took a bold part in seeking to discredit false witnesses 
and to save innocent lives. He thought that there was some 
foundation for the story of the Popish Plot, although it might 
be greatly exaggerated. or this reason, he would not join 
Scroges when that miscreant, to please the Government, 

suddenly wheeled round, and represented Oates and Bedloe 
as evil spirits, after having hailed them as guardian angels. 
Thus he gave mortal offence, not only to Scroggs personally, 
but to the Government, and in less than two years from the 
time of his appointment he was angrily dismissed. 

He returned to the bar, and practised in the Common 
Pleas before Lord Chief Justice North. Says Roger, — 
** However some of his brethren were apt to insult him, his 
Lordship was always careful to repress such indecencies ; 
and not only protected, but used him with much humanity : 
for nothing is so sure a sign of a _ bad breed as insulting over 
the Hentet § 

He immediately recovered his practice, and was in higher 
estimation than ever. But, with his usual caution, he re- 
. frained from taking part in the tremendous struggle which 
now arose respecting the exclusion of the Duke of York from 
the throne; saying, “that it was the part of a good subject 
to respect hereditary right, and to leave any question for 
altering hereditary succession to the King and the Par- 
liament.” 

On his leaving the King’s Bench, that court fell into 


cay pats ay StS + Ibid. 932. 

¢ Burnet says that “he was turned out entirely by Scroggs’s means; ” but 
offence was taken by the ministers, that he did not sufficiently run at the Popish 
Plot, which the King now ventured openly to ridicule. 

§ Life of Guilford, ii. 125. ‘Tbe biographer, with his usual inaccuracy, refers 
to Pemberton’s second return to the bar after Guilford, holding the great 
seal, had ceased to preside in the Common Pleas. 


VOL, II. D 


He is dis- 
placed, and 
returns to 
the bar. 
Feb. 17. 
1680. 


34 


CHAP. 
XX. 


A.D. 1681. 


He is of- 
fered the 
office of 
Chief Jus- 
tice of the 
King’s 
Bench. 


After much 
hesitation 
he accepts 
it. 


REIGN OF CHARLES II. 


deeper and deeper disrepute; and, that the state prosecutions 
meditated after the King’s triumph on the dissolution of 
the Oxford parliament might be carried on with any chance 
of success, it was indispensably necessary that a new Chief 
Justice should be substituted in the place of Scroggs. 
After long deliberation and doubt, it was resolved to offer 
the place to Sir Francis Pemberton. Much reliance was 
placed on his gratitude if he should receive so high a fa- 
vour; and it was hoped that his fair character might insure 
him extraordinary weight with juries. On receiving Lord 
Nottingham’s letter, announcing the King’s commands, his 
perplexity was greater than his pleasure. He was not 
ignorant that Fitzharris’s trial for high treason was pending ; 
that it involved an important question of privilege between 
the Crown and the House of Commons; that it was sure to 
be followed by others in which the King was passionately 
eager to succeed; and that the Whigs against whom they 
were to be directed, although at present prostrate, were still 
the heads of a powerful party. He saw at a glance the 
delicate and difficult situations in which, as the first Criminal © 
Judge of the land, he was sure to be placed; dismissal 
threatening him on one hand, impeachment on the other. 
Knowing himself, he dreaded the struggles in his own breast, — 
his want of moral courage, —and the peril of his doing some- 
thing dishonourable, of which he might for ever after repent. 
But to renounce the glory after which he had so long 
aspired, of having his name enrolled among the Chief Justices 
of England,—to lose the opportunity of making himself a 
name as a great magistrate, —to forego the hope of being able 
to amend the administration of the law, by enlightening and 
softening the Government, which, as it was now strong, 
might easily afford to be merciful, — while he might be 
obscurely wrangling at the bar with brother serjeants, to 
see an unprincipled rival grasp the preferment!— He sat 
down, wrote an acceptance, and on the first day of Easter 
Term, 1681, he was installed in the office with the usual 
solemnities. * 


* 2 Shower, 159.; 1 Ventris, 354. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


He was hardly warm in his seat, when Fitzharris’s trial for 
high treason came on before him; and although he had been 
promoted chiefly that he might conduct it with partiality, he 
finished it to the King’s entire satisfaction, and without any 
damage to his own character. 

Fitzharris was a consummate scoundrel, who had offered 
himself as a witness to both parties, who had deceived both 
parties, and whom both parties had wished to hang;—the 
courtiers, by indictment for high treason, according to the 
course of the common law,—the exclusionists, by parliamentary 
impeachment. At the Oxford Parliament, the impeachment 
was voted by the Commons, and rejected by the Lords; and 
two days afterwards came the dissolution. 

In the month of April following, the Attorney General 
prepared a bill of indictment for high treason, to be presented 
to the grand jury of the county of Middlesex. In charging 
the grand jury, the Chief Justice said, “ You ought not, and 
cannot, take any notice of any votes of the House of 
Commons. You are sworn to inquire of the matters given 
you in charge. By the opinion of all the Judges you are 
bound to find a true bill, if there be evidence enough before 
you to prove the charge.” 

The prisoner having afterwards pleaded the pendency of 
the impeachment in abatement, by way of showing that the 
Court of King’s Bench had not jurisdiction to try him, and 
the Attorney General having demurred, the question was 
argued at prodigious length. One Judge was inclined in 
favour of the plea, but it was overruled, Pemberton merely 
saying, “ My brother Jones and my brother Raymond agree 
with me that it is bad.” 

Upon the merits, a strong case was made out against 
Fitzharris on his own confessions, for he had pretended to be 
an accomplice in the Popish Plot, and his scheme had been to 
make money by falsely accusing himself and others. It was 
likewise proved against him that he had printed a pamphlet 
advising that the King should be assassinated. He repre- 
sented that he had been employed as a spy by the Govern- 
ment to distribute it among obnoxious persons, who were 


to be apprehended with copies of it in their pockets; and he 
D 2 


35 


CHAP. 
XX. 


A.D. 1681, 
He tries 
Fitzharris 
for high 
treason. 


36 


‘CHAP. 
XX. 





A.D. 1681. 


He tries 
the Roman 
Catholic 
Primate of 
Ireland. 


REIGN OF CHARLES II. 


called as his witness the Duchess of Portsmouth, who acknow- 
ledged that the King had given him money, although she 
swore that it was purely as a gratuity. Fitzharris was con- 
victed and executed. 

The trial was by no means creditable to any of those who 
were concerned in it; but I cannot say that any peculiar 
blame was imputable to Chief Justice Pemberton, for, during 
the whole proceeding, he perfectly preserved his temper, he 
laid down no bad law, and he cannot be accused of having 
perverted the facts. Yet he must have had a suspicion that 
the case, apparently made out for the Crown, was founded on 
collusion and artifice; and, although he so managed the trial 
as to escape public censure, his recollection of it must have 
caused him a pang for the rest of his days.* 

In the next important case which was tried before him 
he cannot be said to have violated the law, but his conduct 
was discreditable to him and to his country. The most 
Reverend Dr. Oliver Plunket, titular Archbishop of Armagh, 
and Primate of the Roman Catholic Church in Ireland, a 
man of splendid abilities, profound learning, unblemished life, 
genuine piety, and, what is more to the purpose, of un- 
questionable loyalty, — who was not only venerated by those 
of his own religious persuasion, but, having under four suc- 
cessive Lord Lieutenants exerted himself to preserve the 
peace of the country and to foster English connection, was 
respected by all enlightened Protestants,—had been accused of 
being engaged in an Irish Popish plot, which was invented in 
imitation of that which had enjoyed such prodigious success 
in England. Instead of assassinating the King, burning 
London, &c., on which Oates and Bedloe had often dilated, 
their associates imputed to the Irish Catholic Primate that 
he had invited a French army to land at Carlingford, that he 
had enroiled and trained 70,000 native Irishmen to join it, and 
that, with the combined force, all Protestants in the island 
were to be extirpated, and Ireland was to be created into an 
independent Catholic state. There were absurdities and im- 
possibilities in this plan so palpable, that no one, with local 
knowledge upon the subject, could have believed in its 
existence; and the prelate must have been safe in the hands 

* 8 St. Tr. 245-426, 


LIFE OF CHIEF JUSTICE PEMBERTON. 


of any Irish jury. Therefore, —under an English act of par- 
lament, passed in the reign of Henry VIII., which gave a 
right to try in England high treason committed in any of the 
dominions of the Crown, — after he had been confined some 
months in Dublin, he was brought over to London in bonds, 
and lodged in Newgate. A prosecution for high treason was 
then commenced against him before the Court of King’s 
Bench at Westminster. 

On his arraignment, he pointed out the extreme hardship 
and injustice of being carried away from his native land, and 
brought to be tried among strangers, who were not only 
ignorant of his character, but were very imperfectly acquainted 
with localities, circumstances, and customs, upon which the 
credibility of the witnesses against him must greatly depend, 
and who might have a strong prejudice against him, his 
country, and his religion : — 

Pemberton, C.J.: ‘Mr. Plunket, you shall have as fair a trial 
as if you were in Ireland. You are here by a statute not made 
on purpose to bring you into a snare, but an ancient statute, and 
not without precedents of its having been put in execution before 
your time ; for your own country will tell you of O’Roorke and 
several others that have been arraigned and condemned here for 
treason done there. Your trial shall be by honest persons ac- 
cording to the laws which obtain in this kingdom.” 

The Archbishop prayed that his trial might be postponed 
for ten days, because, by reason of adverse winds, his wit- 
nesses had not arrived; but he was told by the Chief Justice 
that a longer time had been allowed him to prepare for trial 
than was usual in such cases. ‘Thus commenced the address 
of Sir Robert Sawyer, the Attorney General: — “ May it 
please your Lordships, and you, gentlemen of the jury, the 
character this gentleman bears, as primate under a foreign 
and usurped jurisdiction, will be a great inducement to you 
to give credit to that evidence which we shall produce before 
you to prove his guilt. He obtained this very preferment 
upon a promise to raise 60,000 men in Ireland for the Pope’s 
service, to settle Popery there, and to subvert the govern- 
ment.” And in the same strain he continued, without any 


check from the bench. It was in vain that the Archbishop 
DS 


37 


CHAP: 
XX. 


A.D. 1681. 


38 


CHAP. 
XX. 





A.D. 1681. 


REIGN OF CHARLES II. 


pointed out the utter impossibility of a French army being 
landed at Carlingford, and the preposterous nature of the 
charge that he had drilled 70,000 armed men, as he had only 
used spiritual weapons against impiety and vice. The fatal 
verdict being recorded, Chief Justice Pemberton thus pro~ 
nounced sentence : — 


“ Look you, Mr. Plunket, you have been here indicted of a very 
great and heinous crime —the greatest and most heinous of all 
crimes — and that is, high treason; and, truly, yours is of the 
highest nature; it isa treason, in truth, against God and your 
King, and the country where you lived. You have done as much 
as you could to dishonour God in this case; for the bottom of your 
treason was, your setting up your false religion, than which there 
is not anything more displeasing to God or more pernicious to 
mankind, a religion which is ten times worse than all the hea- 
thenish superstitions, the most dishonourable and derogatory to God 
and his glory of all religions or pretended religions whatsoever, 
for it undertakes to dispense with God’s laws, and to pardon the 
breach of them; so that, certainly, a greater crime there cannot 
be committed against God, than for a man to encourage its propa- 
gation. Ido now wish you to consider, that you are near your 
end. It seems you have lived in a false religion hitherto ; but it 
is not too late at any time to repent. J trust you may have the 
grace to do so. In the mean time, there is no room for us to grant 
you any kind of mercy, though I tell you we are inclined to pity 
all malefactors.” Archbishop: “If I were a man such as your 
Lordship conceives me to be, not thinking of God Almighty or 
heaven or hell, I might have saved my life, for it has been often 
offered to me if I would confess my own guilt and accuse others; 
but, my Lord, I would sooner die ten thousand deaths.” Chief 
Justice: “Iam sorry to see you persist in the principles of that 
false religion which you profess.” Archbishop: “These, my 
Lord, are principles that even God Almighty himself cannot dis- 
pense withal.” Chief Justice: “ Well, however that may be, 
the judgment which we must give you is that which the law pre- 
scribes, ‘ you must go from hence to the place from whence you 
came, that is Newgate, and from thence you shall be drawn 
through the city of London to Tyburn ; there you shall be hanged 
by the neck, but cut down before you are dead,” &c. &c. Arch- 
bishop: “I hope I may have this favour, for a servant and some 
few friends now to: be with me.” Chief Justice: “I know 
nothing to the contrary. But I would advise you to have some 


LIFE OF CHIEF JUSTICE PEMBERTON. 


minister to come to you, some Protestant minister. We wish 
better to you than you doto yourself.” Archbishop: “ God 
Almighty bless your Lordship! And now, my Lord, asI am a 
dead man to this world, and as I hope for mercy in the next, I 
was never guilty of any of the treasons laid to my charge, as you 
will know in due time.” 

The sacraments having been administered to him according 
to the rites of his church by a brother convict, the Arch- 
bishop was, a few days afterwards, drawn through the streets 
of London on a hurdle, and, having again protested his inno- 
cence and forgiven his enemies, he was put to death with all 
the revolting cruelties enumerated to him when he received 
sentence. Protestant zeal only desired one addition to the 
sacrifice —that the victim should have been decked in full 
canonicals as Popish Primate of all Ireland.* 

For some unaccountable reason, the Government was in- 
censed against Plunket, and therefore Pemberton convicted 
him according to the rules of law. Mr. Fox observes, that 
* the King, even after the dissolution of his best parliament, 
when he had so far subdued his enemies as to be no longer 
under any apprehensions from them, did not think it worth 
while to save the life of Plunket, of whose innocence no 
doubt could be entertained.” f 

I now come to the most exceptionable passage in the life 
of Chief Justice Pemberton. While the King was nearly 
indifferent about Plunket, he was more eager than he had 
ever been in pursuit of any object during his reign, — to 
bring Shaftesbury to the scaffold; and this he knew would be 
accomplished as soon as he could get a bill of indictment found 
against him by a grand jury, for the doomed patriot would 
then have perished by a partial selection of peers in the 
Court of the Lord High Steward. ‘To induce the grand 
jurors to find the bill, Pemberton, although, as a lawyer, he 
was well aware that they ought first to have had a Hens 
facie case of guilt made out, fe addressed them : 

“ Look ye, gentlemen, I must tell you that which is referred to 
you is to consider whether there be any reason or ground for the 
King to call to account those who are accused ; if there be pro- 


* 8 St. Tr. 447—500. + Fox’s History of James II. 
F p 4 


39 


CHAP; 
XX, 


A.D. 1681. 


He strives 
to induce 
the grand _ 
jury to find 
an indict- 
ment 
against 
Lord 
Shaftes- 
bury. 


40 


CHAP. 
XX. 


A.D, 1681. 


Trial of 
Lord Grey 
de Werke 
for the se- 
duction of 
Lady Har- 
riet 
Berkeley. 


REIGN OF CHARLES II. 


bable ground, it is as much as you can inquire into. Where there 
is no kind of suspicion of a crime, nor reason to believe that the 
thing can be proved, it is not for the King’s honour to -call men to 
account ; buta probable cause is enough. As it is a crime to con- 
demn innocent persons, so it is a crime as great to acquit the 
guilty. ‘That God who requires the one, requires both; and let 
me tell you, if any of you shall be refractory, and will not find a 
bill where there isa probable ground for an accusation, you do 
thereby intercept justice, and make yourselves criminals.” 

Contrary to usage and law, he further ruled that the wit- 
nesses on whose evidence the grand jury were to act should 
be examined in open court; and, in conjunction with North, 
who outdid him in servility, he resorted to the most unworthy 
arts of intimidation and cajolery to obtain the finding of a 
true bill; but the juries were still returned by Whig sheriffs, 
the franchises of the City of London remaining in force. The 
bill was returned 1¢NoRAMUS, and Shaftesbury was saved.* 
There is no more striking proof of the depraved state of 
public morality in those days than that, after such an instance 
of dastardly compliance with the wishes of the King, Pem- 
berton should still have been considered a judge to be respected, 
by comparison, for independence and integrity. 

Whether he thought that, on the last occasion, he had gone 
too far to please the Government, and now wished to seize 
an opportunity of putting on a show of impartiality, I know 
not; but, on the trial of Lord Grey de Werke, indicted 
before him for carrying off and seducing the Lady Harriet 
Berkeley, daughter of the Earl of Berkeley, -— although the 
King was desirous of a conviction because the defendant 
was a Whig, Chief Justice Pemberton conducted himself 
unexceptionably. He properly ruled that the young lady 
herself was a competent witness; and, in summing up to the 
jury, he said — 

“The question before you is, whether there was any unlawful 
solicitation of this lady’s love, and whether there was any in- 
veiglement of her to withdraw herself and run away from her 
father’s home without his consent, and whether my Lord Grey 
did frequent her company afterwards? Her mother and sisters 


* 8 St. Tr. 759—842. ; Lives of Chancellors, iii. ch. xe, 


LIFE OF CHIEF JUSTICE PEMBERTON. 


make out a strong case to support the indictment; but she denies 
it all, and I must leave it to you which story you will believe.” 
After the trial was over, Pemberton, with great spirit, quelled 
a riot which arose in Westminster Hall respecting the custody 
of the Lady Harriet, her father laying hold of her against 
her will, and she, in collusion with her paramour, pretending 
that she was married to another man, who claimed her. 
Swords were drawn, and a conflict was begun, but the Chief 
Justice sternly rebuked the combatants, and by his inter- 
position tranquillity was restored without effusion of blood.* 
It might have been supposed that the King and his 
ministers would have had confidence in Chief Justice Pem- 
berton, but, in spite of the zealous assistance he had given in 
the plan to hang Lord Shaftesbury, he was now removed 
from his office as untrustworthy. While the charters of the 
City of London remained by which the citizens were em- 
powered to elect sheriffs, who returned juries both for the 
City of London and for the County of Middlesex, there was 
no certainty that the best endeavours of the most obsequious 
judges to cut off Whig leaders might not be rendered abor- 
tive by a conscientious verdict. A guo warranto suit had, 
therefore, been instituted, for the purpose of having all the 
charters of the City declared forfeited, so that the King 
might remodel its municipal constitution in the way best 
calculated to gain his own ends. This suit had been advised 
by the subtlest of special pleaders — EpMuUND SAUNDERS, 
and he had drawn the guo warranto, and conducted all the 
proceedings as counsel for the Crown to the stage where it 
was ripe for being finally argued and: determined in the 
Court of King’s Bench. The constitution of the country 
was supposed to depend upon the result. If the citadel of 
freedom should be taken in the assault, despotism would be 


* 9 St. Tr. 127—186. Macaulay describes this as ‘a scene unparalleled in 
our legal history. The seducer appeared with dauntless front, accompanied by 
his paramour. Nor did the Whig Lords flinch from their friend’s side even in 
that extremity. In our time such a trial would be fatal to the character of a 
public man; but in that age the standard of morality among the great was so 
low, and party spirit was so violent, that Grey still continued to have consider- 
able influence, though the Puritans, who formed a strong section of the Whig 
party, looked soinewhat coldly upon him.” — Vol.i. p. 529, 530. 


41 


CHAP: 
XX. 


A.D. 1682. 


Cause ot 
Pember- 
ton’s re- 
moval from 
the office of 
Chief Jus- 
tice of the 
King’s 
Bench. 


The Lon- 
don Quo 
War- 


RANTO, 


42 


CHAP. 
XX, 


A.D. 1682, 


He is made 
Chief Jus- 
tice of the 
Common 
Pleas. 


REIGN OF CHARLES II. 


permanently established ; but failure would revive agitation, 
and might render the calling of a parliament indispensable. 
Every thing depended on the Chief Justice of the King’s 
Bench. Had the prosecution been well founded, Pemberton 
would have been very readily trusted with it; but, un- 
fortunately, all lawyers knew that if the slightest regard 
were paid to the principles of law or to former decisions, 
there must be judgment in favour of the City of London. 
The courtiers were aware that Pemberton was not entirely 
devoid of conscience, and that there were limits to his aberra- 
tions from rectitude beyond which he would not trespass. 
To give him a chance, he was sounded by the Attorney Ge- 
neral, in a manner not unusual, respecting the guo warranto 
against the City, — when he returned an ambiguous answer. 
The bold resolution was taken to cashier him, and to 
substitute for him EpMUND SAUNDERS, about whom there 
could be no misgiving. Notwithstanding Pemberton’s merits 
and past services, he would at once have been reduced to the 
ranks, but it luckily happened that the inferior office of 
Chief Justice of the Common Pleas was vacant. This was 
offered to him as a solatium, and he had the meanness to 
accept it. Sir Thomas Raymond, in giving an account of 
Saunders’s installation, says “he was placed Chief Justice of 


the said Court in the room of Sir Francis Pemberton, who 


was the day before sworn Chief Justice of the Common Pleas 
at his own desire, for that it is a place (tho’ not so honour- 
able) yet of more ease and plenty, as the Lord Keeper 
said in his speech to Saunders.” * But, says Roger North, 
who had a spite against Pemberton, “the truth is, it was 
not thought any way reasonable to trust that cause, on 
which the peace of the Government so much depended, to a 
chief who never showed so much regard to the law as to his 
will, and notorious as he was for little honesty, boldness, 
cunning, and incontrolable opinion of himself.” It may be 
amusing to read his arguments by which such proceedings 
were gravely and unblushingly defended : — 

“It will be proper to solve a question much tossed about in 
those days, whether the Court was not to blame for appointing 


* Sir T. Raymond, 473. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


men to places of judgment where great matters of law and of 
mighty copsequence depended to be heard and determined, whose 
Opinions were known beforehand. All governments must be en- 
trusted with power, which may be used to good or ill purpose. 
Here a government is beset with enemies ever watching for oppor- 
tunities to destroy it, and having a power to choose whom to trust, 
the taking up men whose principles are not known is more than 
an even chance that enemies are taken into their bosom. Would 
they not be sure of men to judge whose understandings and prin- 
ciples were foreknown? What is the use of power but to secure 
justice? It is a maxim of law, that fraud is not to be assigned in 
lawful acts. If governments secure their peace by doing only 
what is lawful to be done, all is right. If they suffer encroach- 
ments, and at length dissolution, for want of using such powers, 
what will it be called but stupidity and folly ?” * 

Sir Francis Pemberton being thus removed from the office 
of Chief Justice of the King’s Bench to make way for one 
who not only had never been in office before and had not 
even worn a silk gown, but besides was of the lowest origin 
and of the most vulgar habits — felt the degradation keenly, 
and, instead of rejoicing in his slender integrity, expressed 
regret that he had not been more uniformly complying. But 
if he was to walk behind Saunders, who had “ nine issues in 
his back,” it was some consolation to him that he was to be 
still “ My Lord,” and to receive higher emoluments than he 
could expect at the bar. He was sworn in Chief Justice of 
the Common Pleas, at the Lord Chancellor’s private house, 
— to ayoid speeches in open court, which might have been 
very awkward on both sides.f 

The Quo WaRRANTO proceeded. Judgment was given 
against the City; all its charters, granted by so many sove- 
reigns, were declared to be forfeited ; all its privileges were 
annihilated; and the Government had now the unlimited 
power of packing juries in London and Middlesex. { 

But Saunders had lost his life in the wound which he had 
inflicted on the constitution, and the office of Chief Justice 
of the King’s Bench was again vacant. It might have been 


* Life of Guilford, ii, 121. 
+ Sir Thomas Raymond, 251.; Burnet, O. T., ii. 185. 188. 
+ 8 St. Tr. 1039, 


43 


CHAP, 
eae 


A.D. 1682. 


Jan. 13. 


A.D. 1683. 
Office of 

Chief Jus- 
tice of the 


44 


CHAP. 
XX, 


A.D, 1683. 
King’s 
Bench 
again 
vacant, 
Rye-house 
Plot. 


Trial of 
Walcot. 


Lord Rus- 


sell’s Case. 


July 13. 
Courteous 
demeanour 
of Pember- 
tonto Lord 
Russell. 


REIGN OF CHARLES II. 


restored to Pemberton had there not been another candidate 
for it, who was destined to throw into the shade all past 
judicial delinquency. Some months intervened before the 
new law arrangements could be completed. In this interval 
the Rye-house Plot was discovered, and, those implicated 
in it being about to be tried, Pemberton was placed at the 
head of the Commission, the Government thinking that, not- 
withstanding his secret resentment, he had motives sufficient 
to keep him steady in the hope of restitution and the dread 
of further disgrace. 

The case of Colonel Walcot was taken first ; and here there 
was no difficulty, for he had not only joined in planning an 
insurrection against the Government, but was privy to the 
design of assassinating the King and the Duke of York, and, 
in a letter to the Secretary of State, he had confessed his 
complicity, and offered to become a witness for the Crown. 
This trial was meant to prepare the public mind for that of 
Lord Russell, the great ornament of the Whig party, who 
had carried the Exclusion Bill through the House of Com- 
mons, and, attended by a great following of Whig members, 
had delivered it with his own hand to the Lord Chancellor 
at the bar of the House of Lords. In proportion to his 
virtues was the desire to wreak vengeance upon him. But 
the object was no less difficult than desirable, for he had 
been kept profoundly ignorant of the intention to offer vio- 
lence to the royal brothers, from the certainty that he would 
have rejected it with abhorrence; and although he had been 
present when there were deliberations respecting the right 
and the expediency of resistance by force to the Government 
after the system had been established of ruling without par- 
liaments, he had never concurred in the opinion that there 
were no longer constitutional means of redress, —- much less 
had he concerted an armed insurrection. Notwithstanding 
all the efforts made to return a prejudiced jury, there were 
serious apprehensions of an acquittal. 

Pemberton, the presiding Judge, seems to have been con- 
vinced that the evidence against him was insufficient; and 
although he did not interpose with becoming vigour, by re- 
pressing the unfair arts of Jeffreys who was leading counsel 


LIFE OF CHIEF JUSTICE PEMBERTON. 


for the Crown, and although he did not stop the prosecution 
as an independent judge would do in modern times, he can- 
not be accused of any perversion of law; and, instead of treat- 
ing the prisoner with brutality, as was wished and expected, 
he behaved to him with courtesy and seeming kindness. 

Lord Russell, on his arraignment at the sitting of the 
Court in the morning, haying prayed that the trial should be 
postponed till the afternoon, as a witness for him was absent, 
and it had been usual in such case to allow an interval between 
the arraignment and the trial, Pemberton said, “ Why may 
not this trial be respited till the afternoon?” and the only 
answer being the insolent exclamation “ Pray call the jury,” 
he mildly added, “‘ My Lord, the King’s counsel think it not 
reasonable to put off the trial longer, and we cannot put it 
off without their consent in this case.” 

The following dialogue then took place, which introduced 
the touching display of female tenderness and heroism of the 
celebrated Rachel Lady Russell assisting her martyred hus- 
band during his trial—a subject often illustrated both by the 
pen and the pencil. 

Lord Russell: “ My Lord, may I not have the use of pen, ink, 
and paper?” Pemberton: “ Yes, my Lord.” Lord Russell: 
«My Lord, may I not make use of any papers I have?” Pem- 
berton: “ Yes, by all means.” Lord Russell: “ May I have 
somebody write to help my memory? Attorney General: “ Yes, 
a servant.” Lord Russell: “My wife is here, my Lord, to do it.” 
Pemberton: “ If my Lady please to give herself the trouble.” 

The Chief Justice admitted Dr. Burnet, Dr. Tillotson, and 
other witnesses, to speak to the good character and loyal 
conversation of the prisoner, and gave weight to their testi- 
mony, notwithstanding the observation of Jeffreys that “ it 
was easy to express a regard for the King while conspiring to 
murder him.” In summing up to the jury, after alluding to 
the witnesses called by the prisoner * concerning his integrity 
and course of life,” he said, — 

*“ Now, the question before you will be, whether, upon this 
whole matter, you do believe my Lord Russell had any design 
upon the King’s life, for that is the material part here. It is given 
you by the King’s counsel as an evidence of this, that he did con- 


45 


CHAP. 
XX. 


A.v. 1683, 


46 


CHAP. 
XX. 


A.D. 1683. 


Determi- 
nation to 
dismiss 
Pemberton 
from being 


a Judge. 


Sept. 29. 


REIGN OF CHARLES II. 


spire to raise an insurrection, and to surprise the King’s guards, 
which, say they, can have no other end but to seize and destroy the 
King. It must be left to you upon the whole matter. You have 
not evidence in this case as you had in that tried yesterday, of a 
conspiracy to kill the King at the Rye. ‘There, direct evidence 
was given of a consult to kill the King, which you have not here. 
If you believe the prisoner at the bar to have conspired the death 
of the King, and in order to that to have had the consults the 
witnesses speak of, you must find him guilty of the treason laid to 
his charge.” 

The jury retired, and the courtiers present were in a state 
of the greatest alarm; for against Algernon Sydney, who was 
to be tried next, the case was still weaker; and if the two 
Whig chiefs, who were considered already cut off, should 
recover their liberty, and should renew their agitation, a 
national cry might be got up for the summoning of Par- 
liament, and a new effort might be made to rescue the country 
from a Popish successor. These fears were vain. ‘The jury 
returned a verdict of Gu1LTy, and Lord Russell expiated on 
the scaffold the crime of trying to preserve the religion and 
liberties of his country. 

But Pemberton was not to be forgiven the anxiety he had 
occasioned. Notwithstanding the want of moral courage 
and the subserviency he had displayed during Lord Russell’s 
trial, complaint was truly made that hitherto there never had 
been an instance of a state offender, whom the Government 
were desirous of convicting, being treated with so much 
moderation, and being allowed such a fair chance of escaping. 
It was determined that Sydney should be tried before a 
Judge who would make sure work of him, and that as Pem- 
berton had not taken warning by his removal from the office 
of Chief Justice of the King’s Bench, and as he was so irre- 
claimably irresolute that no dependence could be placed upon 
him, he should be for ever deprived of all judicial employ- 
ment. Accordingly a supersedeas passed the great seal, by 
which he was dismissed from the office of Chief Justice of 
the Common Pleas; Jones, untroubled by scruples, was ap- 
pointed to succeed him; and Jeffreys, promoted to be Chief 
Justice of the King’s Bench, was the remorseless murderer of 


LIFE OF CHIEF JUSTICE PEMBERTON. 


Sydney.* At the same time Pemberton was expelled from 
the Privy Council, into which he had been admitted a 
member when he was made Chief Justice of the King’s 
Bench. 

Before I again accompany him to the bar, I ought to say 
something of his decisions in civil cases while he remained on 
the bench. . Roger North’s grudge against him, for having a 
hankering after honesty and independence, leads him to say 
“he was a better practiser than a judge; for he had a 
towering opinion of his own sense and wisdom, and rather 
made than declared law: I have heard his Lordship say, that 
in making law he had outdone King, Lords, and Commons.” 
This jocular boast he very likely made, for it is quite con- 
sistent with his having done his duty as an enlightened 
magistrate. With us, the rules of property fixed by act of 
parliament bear an infinitesimally small proportion to those 
fixed by the common law, and the common law is made up of 
judicial decisions. New combinations of facts are constantly 
arising and producing new questions of law; the deter- 
mination of each of these may be considered a new law, for 
it lays down a rule to be followed in time to come, and the 
reports of our courts of justice are far more voluminous than 
the statute book. Pemberton did not publish any of his own 
judgments, and he was by no means fortunate in having a 
good reporter; but, making allowance for the inaccuracies and 
the barbarous dialect of Ventris, Shower, Sir Thomas Jones, 
and Sir Thomas Raymond, he seems to have proceeded 
generally on sound principles of jurisprudence, and by no 
means to have been wanting in respect for the authority of 
his predecessors. ‘The only bad decisions to be laid to his 
charge are those against the privileges of the House of 
Commons, for which he was punished by the Convention 
Parliament, and which it will afterwards be my duty to 
explain. 

He was particularly celebrated as a good nisi prius judge. 
Sir Henry Chauncy says, “ He would not suffer lawyers, on 
trials before him, to interrupt or banter witnesses in their 


* 2 Shower, 318. 


47 


CHAP. 
XX, 


A.p. 1683. 


His deci- 
sions in 
civil cases, 


48 


CH AP. 
XX. 


He a third 


time com- 
mences 
practice at 
the bar 


A.pv. 1688. 
He is 
counsel for 
the Seven 
Bishops. 


REIGN OF JAMES II. 


evidence, but allowed every person liberty to recollect their 
thoughts, and to speak without fear, that the truth might be 
better discovered.” * 

Although he was now in his sixtieth year, he resolved the 
third time in his life to begin to practise at the bar; and, 
having been several years a Chief Justice, and called Lorp 
PEMBERTON, he became once more Mr. Serjeant. 

He immediately again got into extensive business, and he 
was engaged in the most important trials which took place, 
both civil and criminal, till the landing of the Prince of 
Orange —a period of five years. He sat usually in the 
Common Pleas, but he occasionally went into the King’s 
Bench, and practised before Jeffreys, notwithstanding their 
former squabbles when Pemberton was on the bench and 
Jeffreys was at the bar.t 

The grand trial coming on which proximately produced the 
Revolution, the ex-Chief Justice was counsel for the Seven 
Bishops, along with a strange mixture of counsel of different 
parties and principles — Sawyer and Finch, who, as Attorney 
and Solicitor General for Charles II., had prosecuted Russell 
and Sydney; Pollexfen, the Whig leader of the Western Cir- 
cuit, who had shared with Jeffreys the obloquy of the “ Bloody 
Assizes ;” Levinz, who, returning to the bar when displaced 
from the bench for a show of independence, was now induced 
to take a brief against the Crown by a threat of the attorneys 
that, if he refused it, he should never hold another; Treby, 
the ex-Recorder of London, who had been turned out when 
the City was disfranchised ; and Somers, hitherto only known 
for learning and ability by a few private friends, — hereafter 
to be immortalised as the author of the Bill of Rights, and 
the chief founder of the constitutional government under 
which we now live. They forgot all past differences and 
animosities, and nobly struggled in defence of their illustrious 
clients. In ex-Chief Justice Pemberton was seen a wonder- 
ful union of zeal, discretion, learning, and eloquence, and 
“through the whole trial he did his duty manfully and ably.” § 

* See Clutterbuck’s Herts, i. 82. 

t The Chiefs were Lords simply by their surnames. Hence we speak at 


this day of Lord Coke, Lord Hale, and Lord Holt. 
¢ 10 St. Tr. 567. § Macanlay’s History, i. 379. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


The first point which he made, when the Bishops were 
brought from the Tower and charged with the information, 
was, —“ that they were illegally in custody, and therefore 
were not then bound to plead.” 

Pemberton, Serjeant: ‘“ Good my Lord, will you please to 
hear usa little to this matter?” JL. C. J.: “ Brother Pemberton, 
we will not refuse to hear you — by no means — but not now; 
for the King is pleased, by his Attorney and Solicitor General, 
to charge these noble persons, my Lords the Bishops, with an in- 
formation.” Pemberton, Serjt.: “Pray, my Lord, spare us a 
word : if we are not here as prisoners regularly before your Lord- 
ship, and are not brought in by due process, the Court has not 
power to charge us with the information; therefore we beg to 
be heard on the question, whether we are legally here before 
you?” 

The objection being overruled, Pemberton offered a plea 
to be put upon the record “that the defendants, as peers of 
parliament, were privileged from arrest in such a case ;” but 
this the Court refused to receive, and the Bishops were 
obliged to plead not guilty. 

When the jury had been sworn, the charge was opened 
against the defendants that they had written and published, 
in the county of Middlesex, a false, malicious, and seditious 
libel (meaning the respectful Petition which they had pre- 
sented to the King, praying that his Majesty would recal his 
order for the clergy to read the Declaration of Indulgence, 
issued contrary to the Test Act).* But the first difficulty was 
to prove their signatures to the Petition, and an acquittal 
was about to take place, when the Crown counsel put into 
the witness-box Mr. Blathwayt, the clerk of the Council, who 
swore that, when they were summoned before the King, they 
owned their signatures to the Petition; but Pemberton in- 
sisted, in cross-examination, upon having all that had passed 
between the King and the Bishops fully stated: — 

Williams, S.G.: “ That is a pretty thing, indeed!” Powys, 
A.G.: “Do you think you are at liberty to ask our witnesses 


* The information stated a conspiracy to defame the King, alleging the 
writing and publication of the libel as the overt act; but notwithstanding this 
technicality, which is hardly worth noticing, the prosecution was in reality for 
writing and publishing the libel, and is so treated throughout the whole trial. 


VOL. II. E 


49 


CHAP: 
Be. S& 


June 15. 
1688, 
Question as 
to whether 
the Bishops 
were legally 
imprisoned 


June 20, 


Pember- 
ton’s cross- 
examina- 
tion of the 
clerk of the 
Council. 


50 


CHAP. 
XX. 


Difficulty 
in proving 
a publica- 
tion in 


Middlesex. 


REIGN OF JAMES Ii. 


any impertinent question that comes into your head?” Pemberton : 
“ The witness is sworn to tell the truth, and the whole truth, and 
an answer we must and will have.” Powys, A. G: “ If you per- 
sist in asking such a question, tell us, at least, what use you mean 
to make of it.” Pemberton, Serjt.: “ My Lords, I will answer 
Mr. Attorney. I will deal plainly with the Court. If the Bishops 
owned this paper under a promise from his Majesty that their con- 
fession should not be used against them, I hope that no unfair ad- 
vantage will be taken of them.” Williams, S. G.: “ You put on 
his Majesty what I dare hardly name. Since you are so pressing, 
T demand for the King that the question may be recorded.” Pem- 
berton: “ Record what you will, I am not afraid of you, Mr. 
Solicitor.” * 

After a long altercation, the questions were allowed to be 
put; and it appeared from the answers that, although the 
King had made no express promise that advantage should 
not be taken of the admission of the Bishops, they had ad- 
mitted their handwriting on this understanding. The signa- 
tures were held to be proved. 

But a still greater difficulty arose in showing that there 
had been any Fehnanne of the supposed libel in the county 
of Middlesex: — 

Pemberton, Serjt.: “ To say the writing and subscribing of 
their names is a publication of that paper, is such doctrine truly as 
I never heard before. Suppose this paper had been in my study 
subscribed by me, but never went further, would this have been a 
publication ? but the publication must be proved to have been in 
the county of Middlesex.” Powys, A. G.: “ Look you; it does 
lie upon you to prove it was done elsewhere than in Middlesex.” 
Pemberton, Serjt.: ‘ Sure, Mr. Attorney is in jest.” L.C.JS.: 
“ Pray, brother Pemberton, be quiet. If Mr. Attorney says any- 
thing he ought not to say, I will correct him; but pray do not, 
you who are at the bar, interrupt one another.” 

The Court having finally ruled that there was not sufficient 
evidence of a publication in Middlesex, the Chief Justice was 
beginning to direct the jury to find a verdict of acquittal, 
when Finch, one of the counsel for the Bishops, offered to 

* At this time, leading questions were not allowed to be put in eross- 
examination, more than in examination in chief; and I am not sure that the old 
rule is not the best one——when I consider the monstrous abuse sometimes 


practised in putting words into the mouth of a friendly witness, necessarily called 
by the side he is opposed to. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


adduce evidence for the defendants. Pemberton, seeing the 
gross indiscretion of this proceeding, started on his legs, pulled 
down his junior, and said — 

“ My Lord, we are contented that your Lordship should direct 
the jury.” £.C.J.: “No! no! I will hear Mr. Finch. The 
Bishops shall not say of me, that I would not hear their counsel.” 
Pemberton, Serjt.: “Pray, good my Lord, we stand mightily 
uneasy here, and so do the jury. Pray, dismiss us.” 

But for Finch’s foolish interruption, the anticipated acquit- 
tal would then have been recorded. At this moment it was 
announced that the Earl of Sunderland, the Lord President, 
was coming into court to prove that the Bishops had, in his 
presence, presented the petition to the King at Whitehall. 
LL. C. Ju: “ Well, you see what comes of interruption.” 

After Lord Sunderland’s evidence, nothing remained except 
the question of libel or no libel? Pemberton, when on the 
bench, had concurred with the other judges in the doctrine 
that this was a question exclusively for the Court, and that 
the jury had nothing more to consider than whether, in point 
of fact, the writing alleged to be libellous had been composed 


and published by the defendant.* But, in spite of his own: 


ruling, he insisted that, although the Bishops had been proved 
to have composed and published the Petition, they were 
entitled to a verdict of not guilty from the jury. 

“ My Lords the Bishops,” said he, “ are here accused of a crime 
of a very heinous nature ; they are here branded and stigmatised 
by this information as if they were seditious libellers; when, 
in truth, they have done no more than their duty, their duty to 
God, their duty to the King, and their duty to the Church. We 
insist that the kings of England have no power to suspend or dis- 
pense with the laws and statutes of this kingdom touching re- 
ligion ; that is what we stand upon for our defence. And we say, 
that such a dispensing power with laws and statutes strikes at the 
very foundation of all the rights, liberties, and properties of the 
King’s subjects whatsoever. If the King may suspend the laws of 
the land which concern our religion, 1am sure there is no other 
law but he may suspend; and if the King may suspend all the laws 
of the kingdom, what a condition are all the subjects in for their 


* See Rex v. Harris, 7 St. Tr. 930.,—the case in which, approving of 
Seroggs’s law, he objected to whipping being part of the sentence. 


E 2 


51 


CHAP. 
XX. 


A.D. 1688. 


Pember- 
ton’s 
speech to 
show that 
the Peti- 
tion of the 
Bishops 
was not a 


libel. 


52 


CHAP. 
XX. 


A.D, 1688, | 


Weight of 
Pemberton 
with the 


REIGN OF JAMES II. 


lives, liberties, and properties! —all at mercy. The King’s legal 
prerogatives are as much for the advantage of his subjects as of 
himself, and no man goes about to speak against them ; but, under 
pretence of legal prerogative, to extend this power of the King to 
the destruction of all his subjects, would be doing him no true 
service. These laws are in truth the great bulwark of the reformed 
religion; they are, in truth, that which fenceth the Church of 
England, and we have no human protection besides. ‘They were 
made upon a foresight of the mischief that had and might come by 
false religions in this kingdom — and were intended to keep them 
out—particularly to keep out the Romish religion, which is the very 
worst of all religions.* Ifthis Declaration of Indulgence, against 
which the Bishops made a dutiful representation, should take effect, 
what would be the end of it? All religions are encouraged, let 
them be what they will — Ranters, Quakers, and the like, — nay, 
even Popery, which was intended by these acts of parliament to 
be kept out of this nation, as a religion no way tolerable, and not 
to be endured here. We say this farther, that my Lords the 
Bishops have the care of the Church by their very function and 
offices, and are bound to take care to keep out all those false 
religions which are prohibited and designed to be kept out by the 
law ; and, seeing that this Declaration was founded upon a mere 
pretended power which had been continually opposed and rejected ~ 
in parliament, they could not comply with the King’s commands to 
read it.” 

He then went into an historical discussion respecting the 
dispensing power, showing that as often as it had been claimed 
in matters of religion it had been denied and abandoned. 
Coming to the last attempt in the reign of Charles IL, he 
was proceeding, — “ Afterwards, in 1672, the King was 
prevailed upon again to grant another dispensation somewhat 
larger 2 TC. J: © Brother Pemberton, I would not 
interrupt you, but we have heard of this over and over 
again already.” Pemberton, perceiving that the jury were 
strongly with him, dextrously said, “ Then, since your Lord- 
ship is satisfied of all these things, as I presume you are 
(else I should have gone on), I have done, my Lord.” 

The other counsel exerted themselves with much boldness 
and vigour, but the victory which followed was chiefly to be 





* This must have been very distasteful to Mr. Justice Allybone, sitting be- 
fore him on the bench, who, although a Papist, had been made a judge of the 
King’s Bench by virtue of this supposed dispensing power. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


ascribed to Pemberton, who, having reputably presided as 
Chief Justice of the Court, was regarded with far more 
respect by the jury than his infamous successor, Sir Robert 
Wright, and was still supposed to be laying down the law 
with judicial authority.* 

It might have been expected that, having taken so bold a 
part during this trial, he would have signed the invitation to 
the Prince of Orange, which was sent off immediately after ; 
but his heart failed him. He was paralysed by his scruples 
respecting the sin of rebellion and the perils to which he 
might subject himself if he should join in any unsuccessful 
attempt at resistance to arbitrary rule. He therefore con- 
tinued to devote himself exclusively to his professional pur- 
suits. Even after the Prince of Orange had landed he 
remained perfectly neutral, and he declined a seat in the 
Convention Parliament. 

When William and Mary were on the throne, and new 
judges were to be appointed in the room of those who dis- 
graced the bench at the end of the reign of James II., it was 
expected by many that Pemberton would have been restored 
along with Atkyns and John Powell, who had been removed 
for their honesty during the last two reigns; but, although 
his services in defending the Seven Bishops were duly appre- 
ciated, and it was acknowledged that, when compared with 
Jeffreys and Scroggs, he was a paragon of virtue, it could 
not be forgotten that from timidity, if not corruption, he had 
assisted the Government in their design to bring the Earl of 
Shaftesbury to the block, and that although he had wished 
to save Lord Russell he had allowed him to be sacrificed. 
Indeed, the attainder of this illustrious patriot being now 
reversed by act of parliament as unlawful, there would have 
been much awkwardness in replacing on the bench the judge 
by whom it was pronounced. Therefore, when the members 
of the Cabinet produced their lists of twelve men to preside 
in the common law courts in Westminster Hall, Pemberton’s 
name was found in very few of them; and in the new judicial 

* 12 St. Tr.183—433. My professional friends may be curious to know what 
his fees were on this occasion. From the attorney’s bill it appears that he re- 
ceived five guineas retainer, twenty guineas with his brief, and three guineas for 


a consultation. Sir R. Sawyer and Mr. Finch refused to take any fee. 
E3 


> 


53 


CHAP. 
XX. 


A.v. 1688, 
jury as an 
ex-Chief 
Justice, 


Treatment 
of Pember- 
ton after 
the Revolu- 
tion, 


May 1. 
1689. 


54 


CHAP. 
XX. 


A.D. 1689. 


He is ex- 
amined 
before the 
House of 
Commons, 


Complaint 
against 
him of a 
breach of 
privilege 
when he 
was Chief 
Justice of 
the King’s 
Bench. 


~ July 18. 


REIGN OF WILLIAM AND MARY. 


arrangement, which gave such general satisfaction, he was 
entirely passed over. 

An inquiry being afterwards instituted into the manner in 
which judges had recently been tampered with and cashiered, 
he was examined before the House of Commons, but could 
or would give very little information on the subject. While 
others described very amusing scenes at Chiffinch’s private 
room at Whitehall, where they had secret interviews with 
Charles and James, and were interrogated respecting the 
dispensing power, the King’s prerogative to control the law 
by proclamations, and the judgment they were prepared to 
give in cases which were pending, they could get Pemberton 
to say nothing more than “I was removed out of my place 
without visible cause the first time; neither do I know the 
reason of my being removed from the King’s Bench to the 
Common Pleas. I was never sent for to Whitehall nor to 
my Lord Chancellor’s, The night before, my lord said 
nothing to me, but the next morning I had a supersedeas.”* 
Whether he had given offence by sulkiness I know not, 
but a resolution was now taken to treat him with great 
rigour. 

Mr. Topham, the Serjeant-at-arms of the House of Com- 
mons, presented a petition, setting forth “ that several vex- 
atious actions had been brought against him for executing the 
orders of the House when Sir Francis Pemberton was Chief 
Justice of the King’s Bench, and that, although he had 
pleaded that he acted under the authority of the House, he 
had beén cast in damages and costs.” The petition was 
referred to a select committee, who reported that the judg- 
ments given against the Serjeant-at-arms were illegal, and a 
violation of the privileges of Parliament. Sir Francis Pem- 
berton was thereupon ordered to attend at the bar. The 
treatment which he experienced on this occasion has been 
severely condemned ; but I must confess that his demeanour 
was not very straightforward or dignified. The Speaker 
having informed him that he was sent for to state the ground 
on which he had overruled the plea in Jay v. Topham,— 


* 5 Parl. Hist. 312. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


instead of denying, like Holt, the right of either House of 
Parliament to interrogate him in see irregular manner, or 
frankly stating what had happened, he equivocated, and the 
following dialogue grieved his friends : — 

Pemberton: “Sir, [know nothing of this action. I have been out 
of the court now six years, I cannot remember so many thousand 
actions as were brought at that time. But if you willlet me know 
what the charge is, I do not doubt but I can give you a good ac- 
count of it.” Speaker: “A plea was pleaded that the defendant 
acted by the authority of this House, and such plea you overruled.” 
Pemberton: “'This is quite new to me, for I knew not what I was 
sent for.” Speaker: “The House desires to know on what ground, 
in the case of Jay v. Topham, you overruled the defendant’s 
plea.” Pemberton: “I think he pleaded to the jurisdiction of the 
Court ; and if he did, with submission the plea ought to have been 
overruled.” Speaker: ‘The House doth require your reasons 
for maintaining this opinion.” Pemberton: “I will give you my 
reasons as well as I can; but you cannot expect I should be 
furnished with such reasons now as I may state upon further con- 
sideration. I must premise that I do not think that your privi- 
leges are in question. There is no judge who understands himself 
but will allow the privileges of the House; they are the privileges 
of the nation, and we are all bound to maintain them as much as 
any member of the House. But the question is all de modo — 
whether the authority of the House is pleadable to the jurisdiction 
of the Court, or in bar? And, under favour, I have always taken 
it that such a defence is not pleadablein abatement. The question 
is, whether this shall stop the Court, so that they cannot examine 
into the fact, — and see whether such a warrant was signed by the 
Speaker, as is alleged. Any man living might plead such a 
plea.” 

Time was given to inquire into the pleadings in Jay v. 
Topham, and the ex-Chief Justice was ordered to attend 
again. 

When he next appeared, he insisted that the plea had been 
to the jurisdiction of the Court; and he added, “ We did not 
question the legality of your orders, but we were to see 
whether the orders had been given, and whether they had 
been properly obeyed. If Mr. Topham arrested the plaintiff 
without any order, or imprisoned him till he paid a sum of 


money, damages ought to be awarded. If I was mistaken in 
E 4 : 


55 


oe 


A.D. 1689, 


July 19, 


He is com- 
mitted to 
Newgate. 


REIGN OF WILLIAM AND MARY. 


this case, it was an error of my judgment. My design was to 
to justice.” 

The record is not to be found (as it ought to be) in the 
Treasury of the King’s Bench, having been produced on this 
oceasion at the bar of the House of Commons and not re- 
turned to the proper custody ; but there is every reason te 
believe that the plea was substantially a plea in bar, and that 
it had been improperly overruled. Chief Justice Pem- 
berton happened to be then oscillating towards the Govern: 
ment, which was highly incensed against the popular leaders, 
and entertained a strong desire to put down parliamentary 
privilege. The House of Commons (Maynard, Somers, and 
other learned and just men, being present) passed a resolution 
that Sir Francis Pemberton, in giving this judgment, had been 
guilty of a breach of privilege, and ordered him to be taken 
into custody. In consequence he was committed to Newgate, 
and he remained a close prisoner there till the 14th day of 
March, 1690—a period of eight months — when, the session 
being at last terminated by a prorogation, he was discharged. 

Considering his great eminence as an advocate, the high 
judicial offices which he had filled, and the noble battle he 
had waged in the cause of freedom when defending the Seven 
Bishops, it is impossible not to commiserate his fate. But 
the leaders of the Convention Parliament have been too 
rashly blamed for the punishment inflicted upon him. Lord 
Ellenborough said, in Burdett v. Abbott, “It is surprising 
how a judge could have been questioned and committed to 
prison, by the House of Commons, for having given a judg- 
ment which no judge who ever sat in this place could differ 
from. It was after the Revolution -— which makes such a 
commitment for such a cause a little alarming. It must be re- 
collected that Lord Chief Justice Pemberton stood under the 
disadvantage at that period of having been one of the Judges 
who sat on the trial of Lord Russell. He was a man of 
eminent learning, and, being no favourite with either party at 
that time, for he was shortly after that trial removed from his 
situation, was probably an honest man.” * And Lord Erskine, 
having alluded in a debate in the House of Lords to this 


* 14 East, 104. 





LIFE OF CHIEF JUSTICE PEMBERTON. 


“commitment of Lord Chief Justice Pemberton, exclaimed, 
with much vehemence, “ If a similar attack were made upon 
my noble and learned friend (Lord. Ellenborough) who sits 
next me, for the exercise of his legal jurisdiction, I would 
resist the usurpation with my strength, and bones, and 
blood.” * But there can be little doubt that Pemberton, 
who was ever deficient in moral courage, for the purpose 
of screening himself, misrepresented the plea; and that, how- 
ever meritorious his services at other times may have been, 
on this occasion he well deserved the punishment inflicted 
upon him.t 

On recovering his liberty, he once more returned to the 
bar; but now, enfeebled by age, and not supposed to have 
“the ear of the Court,” he was very little employed. He 
had a beautiful villa near Highgate, where he spent the 
greatest part of his time in seclusion. So late, however, as 
the year 1696, he was one of the counsel for Sir John Fen- 
wick, and assisted in opposing the bill of attainder by which 
that unfortunate gentleman was put to death in a manner 
which would have been condemned in the worst days of the 
Stuarts.t This was the last occasion of Sir Francis Pem- 
berton ever appearing in public. 

Soon after, he altogether withdrew from business, and the 
last three years of his life he entirely devoted to contem- 
plation. He expired on the 10th of June, 1699, in the 74th 
year of his age, and was buried in Highgate church, where 
there still stands a monument erected to his memory, with 
the following inscription : — 


“™M. S. venerabilis admodum viti D. Francisci Pemberton Eq. aurati, ser- 
vientis ad legem, e sociis Interioris Templi, necnon sub serenissimo principe 
Carolo 2°, Banci Regii ac Communis Capitalis Justiciarii, sacra majestati 
a secretioribus consiliis; vir plané egregius, ad reipublice pariter ac suorum 
dulce decus et presidium feliciter natus. Patre Radulpho in Agro Hertford. 
Generoso, ex antiqua Pembertonorum prosapia in Com. Palat. Lancastrie 
oriundo.” § 


With a little more firmness of principle, or moral courage, 
joined to his talents, acquirements, and opportunities, he 


* 16 Parl. Deb. 851. 

t See 2 Nels. Ab. 1248.; Lord Campbell’s Speeches, 206. 

¢ 13 St. Tr. 537—758. 

§ Lysons’ Environs, p. 68.; Clutterbuck’s Herts, ii. 449. He left several 
sons behind him; and his descendants were seated at Trumpington, near Cam- 
bridge, till the beginning of the present century. 


57 


CHAP. 
XX. 


A.D. 1689 
—1699. 


He again 
practises at 
the bar. 


His death. 


His epi- 
taph. 


LIFE OF CHIEF JUSTICE PEMBERTON. 


might have been a great character in English history ; but, 
while he perceived and approved the right course, and never 
entirely abandoned it, he not unfrequently deviated from it, 
—so that among his contemporaries he bore the contemned 
name of a “ trimmer,” and his reputation with posterity has 
been neither pure nor brilliant. The errors of his youth 
would have been easily forgiven after the noble amends 
which he made for them, but we cannot praise the excessive 
caution with which he ever conducted himself that he might 
not give offence to those in power; and although we feel 
pity rather than indignation when his virtue falters, he occa- 
sionally submitted to compliances, for the purpose of winning 
and retaining office, which utterly deprives him of our 
esteem. If any thing could have made him appear a re- 
spectable judge, it would have been a comparison with the 
four Chief Justices who succeeded him. 


LIFE OF CHIEF JUSTICE SAUNDERS. 


CHAPTER XXI. 
LIFE OF LORD CHIEF JUSTICE SAUNDERS. 


THERE never was a more flagrant abuse of the prerogative of 
the Crown than the appointment of a Chief Justice of the 
King’s Bench for the undisguised purpose of giving judg- 
ment for the destruction of the charters of the City of 
London, as a step to the establishment of despotism over the 
land. Sir Edmund Saunders accomplished this task effect- 
ually, and would, without scruple or remorse, have given any 
other illegal judgment required of him by a corrupt Govern- 
ment. Yet I feel inclined to treat his failings with lenience, 
and those who become acquainted with his character are apt 
to have a lurking kindness for him. From the disadvantages 
of his birth and breeding, he had little moral discipline; and 
he not only showed wonderful talents, but very amiable 
social qualities. His rise was most extraordinary, and he 
may be considered as our legal Whittington. 

«* He was at first,” says Roger North, “no better than a 
poor beggar-boy, if not a parish foundling without known 
parents or relations.” There can be no doubt that, when a 
boy, he was discovered wandering about the streets of London 
in the most destitute condition— penniless, friendless — with- 
out having learned any trade, without having received any 
education. But although his parentage was unknown to the 
contemporaries with whom he lived when he had advanced 
himself in the world, recent inquiries have ascertained that 
he was born in the parish of Barnwood, close by the city of 
Gloucester ; that his father, who was above the lowest rank 
of life, died when he was an infant, and that his mother took 
for her second husband a man of the name of Gregory, to 
whom she bore several children. We know nothing more 
respecting him, with certainty, till he presented himself in the 


59 


CHAP. 
X XI. 


Kind feel- 
ing among 
lawyers for 
Sir Ed- 
mund 
Saunders in 
spite of his 
profligacy. 


Qu. whe- 
ther he was 
a found. 


ling ? 


60 


CHAP. 
XXI. 


His first 


appearance 


in London. 


How he 
learned to 
write. 


His legal 
education. 


LIFE OF CHIEF JUSTICE SAUNDERS. 


metropolis; and we are left to imagine that he might have 
been driven to roam abroad for subsistence, by reason of his 
mother’s cottage being levelled to the ground during the siege 
of Gloucester; or that, being hardly used by his stepfather, 
he had run away, and had accompanied the broad-wheeled 
waggon to London, where he had heard that riches and plenty 
abounded. 

The little fugitive found shelter in Clement’s Inn, where 
“he lived by obsequiousness, and courting the attornies’ 
clerks for scraps.” * He began as an errand-boy, and hi: 
remarkable diligence and obliging disposition created a genera. 
interest in his favour. Expressing an eager ambition to learn 
to write, one of the attorneys of the Inn got a board knocked 
up at a window on the top of a staircase. This was his desk, 
and, sitting here, he not only learned the running hand of the 
time, but court hand, black letter, and ingrossing, and made 
himself an “expert entering clerk.” In winter, while at 
work, he covered his shoulders with a blanket, tied hay-bands 
round his legs, and made the blood circulate through his 
fingers by rubbing them when they grew stiff. His next 
step was to copy deeds and law papers, at so much a folio or 
page, —by which he was enabled to procure for himself 
wholesome food and decent clothes. Meanwhile he not only 
picked up a knowledge of Norman French, and law Latin, 
but, by borrowing books, acquired a deep insight into the 
principles of conveyancing and special pleading. By and by 
the friends he had acquired enabled him to take a small 
chamber, to furnish it, and to begin business on his own account 
as a conveyancer and special pleader. But it was in the 
latter department that he took greatest delight, and was the 
most skilful— insomuch that he gained the reputation of 
being familiarly acquainted with all its mysteries; and 
although the order of “special pleaders under the bar” was 
not established till many years after, he was much resorted to 
by attorneys who wished by a sham plea to get over the term, 
or by a subtle replication to take an undue advantage of the 
defendant. 

It has been untruly said of him, as of Jeffreys, that he 


* Life of Guilford, ii. 125. 


. 


LIFE OF CHIEF JUSTICE SAUNDERS. 


began to practise as a barrister without having been ever 
ealled to the bar. In truth, the attorneys who consulted him 
haying observed to him that they should like to have his 
assistance to maintain in court the astute devices which he 
recommended, and which duller men did not comprehend, or 
were ashamed of, he, rather unwillingly, listened to their 
suggestion that he should be entered of an Inn of Court, for 
he never cared much for great profits or high offices; and, 
haying money enough to buy beer and tobacco, the only 
luxuries in which he wished to indulge, he would have pre- 
ferred to continue the huggermugger life which he now led. 
He was domesticated in the family of a tailor in Butcher 
Row, near Temple Bar*, and was supposed to be rather too 
intimate with the mistress of the house. However, without 
giving up his lodging here, to which he resolutely stuck till 
he was made Lord Chief Justice of England, he was pre- 
yailed upon to enter as a member of the Middle Temple. 
Accordingly, on the 4th of July, 1660, he was admitted 
there by the description of “ Mr. Edmund Saunders, of the 
county of the city of Gloucester, gentleman.” The omission 
to mention the name of his father might have given rise to 
the report that he was a foundling; but a statement of 
parentage on such occasions, though usual, was not abso- 
lutely required, as it now is. 

He henceforth attended “moots,” and excited great ad- 
miration by his readiness in putting cases and taking off 
objections. By his extraordinary good-humour and joviality, 
he likewise stood high in the favour of his brother Templars. 
The term of study was then seven years, liable to be abridged 
on proof of proficiency ; and the benchers of the Middle Tem- 
ple had the discernment and the liberality to call Saunders to 
the bar when his name had been on their books little more 
than four years. 

We have a striking proof of the rapidity with which he 
rushed into full business. He compiled Reports of the de- 
cisions of the Court of King’s Bench, beginning with Michael- 


* This was a very narrow dirty lane, which was swept away when the im- 
provements were made between St. Clement’s Church and Temple Bar, about 
forty years ago. 





He is 
called te 
the bar. 


Nov. 15. 
1664. 


His rapid 
progress, 


62 


CHAP: 
XXI. 


A.D. 1666 
— 1671. 


The excel- 
lence of his 
Reports. 


REIGN OF CHARLES II. 


mas Term, 18 Charles II, A.D. 1666, when he had only 
been two years at the bar. These he continued till Easter 
Term, 24 Charles IL, a.p. 1672. They contain all the 
cases of the slightest importance which came before the Court 
during that period; and he was counsel in every one of them. 

His “hold of business” appears the more wonderful when 
we consider that his Matson with the tailor’s wife was well 
known, and might have been expected to damage him even 
in those profligate times; and that he occasionally indulged 
to great excess in drinking, so that he must often have come 
into court very little acquainted with his “ breviat,” and must 
have trusted to his quickness in finding out the questions to 
be argued, and to his storehouse of learning for the apposite 
authorities. 

But, when we peruse his “ Reports,” the mystery is solved. 
There is no such treat fora common lawyer. Lord Mans- 
field called him the “ Terence of reporters,” and he certainly 
supports the forensic dialogue with exquisite art, displaying 
infinite skill himself in the points which he makes, and the 
manner in which he defends them; doing ample justice, at 
the same time, to the ingenuity and learning of his antagonist. 
Considering the barbarous dialect in which he wrote (for the 
Norman French was restored with Charles II.), it is mar- 
vellous to observe what a clear, terse, and epigrammatic 
style he uses on the most abstruse juridical topics. 

He laboured under the imputation of being fond of sharp 
practice, and he was several times rebuked by the Court for 
being “ trop subtile,” or “ going too near the wind ;” but he 
was said by his admirers to be fond of his craft only in meliori 
sensu, or in the good sense of the word, and that, in entrapping 
the opposite party, he was actuated by a love of fun rather 
than a love of fraud.* Thus is he characterised, as a practi- 
tioner, by Roger North : — 


* I knew such aman in my youth. Having demurred four times succes- 
sively to a very faulty declaration, assigning only one blunder for cause of de- 
murrer each time, the author of the declaration sent hima challenge as for a 
personal insult ; when he merely returned for answer,— “ Dear Tom, I fight only 
in Banco Regis, Why should you not suppose that I might be as dull as your- 
self, and that it took me some time to find out the blunders which had escaped 
you? When I came to one which was decisive, there I stopped, presuming that 
what followed must be all right. Your loving friend, E. L.” 


LIFE OF CHIEF JUSTICE SAUNDERS. 


‘Wit and repartee in an affected rusticity were natural to him. 
He was ever ready, and never at a loss, and none came so near as 
he to be a match for Serjeant Maynard. His great dexterity was 
in the art of special pleading, and he would lay snares that often 
caught his superiors, who were not aware of his traps. And he 
was so fond of success for his clients, that, rather than fail, he 
would set the Court hard with a trick ; for which he met some- 
times with a reprimand, which he would wittily ward off, so that 
no one was much offended with him. But Hale could not bear his 
irregularity of life; and for that, and suspicion of his tricks, used 
to bear hard upon him in the court. But no ill usage from the 
bench was too hard for his hold of business, being such as scarce 
any could do but himself.” * 

He did not, like Scroggs and Jeffreys, intrigue for ad- 
vancement. He neither sought favour with the popular 
leaders in the City, nor tried to be introduced into Chiftinch’s 
“spie office” at Whitehall. “In no time did he lean to 
faction, but did his business. without offence to any. He 
put off officious talk of government and politics with jests, 
and so made his wit a catholicon or shield to cover all his 
weak places and infirmities.” { He was in the habit of laugh- 
ing both at Cavaliers and Roundheads ; and, though nothing 
of a Puritan himself, the semi-popish high-churchmen were 
often the objects of his satire. 

His professional, or rather his special-pleading, repu- 
tation forced on him the advancement which he did not 
covet. Towards the end of the reign of Charles II., when 
the courts of justice were turned into instruments of 
tyranny, (or, as it was mildly said, “the Court fell into a 
steady course of using the law against all kinds of offenders,”) 
Saunders had a general retainer from the Crown, and was 
specially employed in drawing indictments against Whigs, 
and quo warrantos against Whiggish corporations. In 
Crown cases he really considered the King as his client, and 
was as eager to gain the day for him, by all sorts of manceuvres, 
as he had ever been for a roguish Clement’s Inn attorney. 
He it was that suggested the mode of proceeding against 


* Life of Guilford, ii. 127. TalbaLess 
¢ He had discontinued his Reports, partly from want of leisure, and partly 
from disliking to report the decisions of such judges as Raynsford and Scroggs. 


63 


CHAP. 
XXI. 


A.D. 1671 
—1680. 
His cha- 
racter as a 
practi- 
tioner. 


He is em- 
ployed by 
the Govern- 
ment 
against the 


Whigs. 





He pleases 
the King 
and is 
knighted. 


His argu- 
ment 
against 
Fitzharris. 


His quarrel 
with Chief 
Justice 
Pember- 
ton, 


REIGN OF CHARLES II. 


Lord Shaftesbury for high treason: on his recommendation 


the experiment was made of examining the witnesses before 


the grand jury in open court, — and he suggested the subtlety 
that “the usual secrecy observed being for the King’s benefit, 
it might be waived by the King at his pleasure.” When the 
important day arrived, he himself interrogated very artfully 
Mr. Blathwayt, the clerk of the Council, who was called to 
produce the papers which had been seized at Lord Shaftesbury’s 
house in Aldersgate-street, and gave a treasonable tinge to 
all that passed. The 1aNoramus of his indictment must 
have been a heavy disappointment to him; but the effort 
which he had made gave high satisfaction to the King, who 
knighted him on the occasion, and from that time looked 
forward to him as a worthy Chief Justice.* 

Upon the dissolution of the Oxford Parliament and the 
rout of the Whig party, it being resolved to hang Fitzharris, 
Saunders argued with uncommon zeal against the prisoner’s 
plea that there was an impeachment depending for the same 
offence ; and concluded his legal argument in a manner which 
seems to us very inconsistent with the calmness of a dry legal 
argument: “ Let him plead guilty or not guilty: I rather 
hope that he is not guilty than that he is guilty: but if he be 
guilty, it is the most horrid venomous treason ever spread 
abroad in any age. And for that reason your Lordships 
will not give countenance to any delay.” t 

I find him several times retained as counsel against the 
Crown; but upon these occasions the Government wished for 
an acquittal. He defended the persons who were prosecuted 
for attempting to throw discredit on the Popish Plot}, he 
was assigned as one of the ‘counsel for Lord Viscount 
Stafford §, and he supported the application made by the 
Earl of Danby to be discharged out of custody. || On this 
last occasion he got into a violent altercation with Lord 
Chief Justice Pemberton. The report says that “Mr. 
Saunders had hardly begun to speak when the Lord Chief 
Justice Pemberton did reprimand the said Mr. Saunders for 


#°S St. Tr-779, t Ib. 271. + 7 St. Tr. 906. 
§ 7 St. Tr. 1242. | 11 St. Tr. 831. 


LIFE OF CHIEF JUSTICE SAUNDERS. 


having offered to impose upon the Court. To all which Mr. 
Saunders replied, that he humbly begged his Lordship’s par- 
don, but he did believe that the rest of his brethren under- 
stood the matter as he did.” The Earl of Danby supported 
this statement, and Saunders had a complete triumph over the 
Chief Justice.* 

Pemberton was soon removed from the office of Chief 
Justice of the King’s Bench, and Saunders sat in his place. 

In spite of the victory which the King had gained over the 
Whigs at the dissolution of his last parliament, he found one 
obstacle remain to the perpetuation of his despotic sway in 
the franchises of the City of London. The citizens (among 
whom were then included all the great merchants, and some 
of the nobility and gentry) were still empowered to elect 
their own magistrates; they were entitled to hold public 
meetings; and they could rely upon the pure administration 
of justice by impartial juries, should they be prosecuted by 
the Government. The Attorney and Solicitor General, being 
consulted, acknowledged that it passed their skill to find a 
remedy; but, a case being laid before Saunders, he advised 
that something should be discovered which might be set up 
as a forfeiture of the City charters, and that a Quo War- 
RANTO should be brought against the citizens, calling upon 
them to show by what authority they presumed to act as a 
corporation. Nothing bearing the colour even of irregularity 
could be suggested against them except that, on the rebuilding 
and enlarging of the markets after the great fire, a bye-law 
had been made, requiring those who exposed cattle and goods 
to contribute to the expense of the improvements by the 
payment of a small toll; and that the Lord Mayor, Aldermen, 
and Commonalty of the City had, in the year 1679, presented 
a petition to the King lamenting the prorogation of parlia- 
ment in the following terms: ‘“ Your petitioners are greatly 
surprised at the late prorogation, whereby the prosecution of 
the public justice of the kingdom, and the making of neces- 
sary provisions for the preservation of your Majesty and your 
Protestant subjects, have received interruption.” 

Saunders allowed that these grounds of forfeiture were 

* 11 St. Tr. 831. 
VOL. Il. F 


65 


CHAP. 
XXI. 


History of 
the great 
London 
Quo War- 
RANTO, 


66 


CHAP. 
XXI. 


A.pd. 1683. 


Saunders 
made 
Chief Jus- 
tice of the 
King’s 
Bench. 


His instal- 
lation. 


REIGN OF CHARLES Ii. 


rather scanty, but undertook to make out the BYE-Law to 
be the usurpation of a power to impose taxes without autho- 
rity of Parliament, and the PETITION a seditious interference 
with the just prerogative of the Crown. 

Accordingly, the Quo WaRRANTO was sued out, and, to 
the plea setting forth the charters under which the citizens 
of London exercised their privileges as a corporation, he drew 
an ingenious replication, averring that the citizens had for- 
feited their charters by usurping a power to impose taxes 
without authority of Parliament, and by seditiously interfering 
with the just prerogative of the Crown. The written plead- 
ings ended in a demurrer, by which the sufficiency of the 
replication was referred, as a question of law, to thé judgment 
of the Court of King’s Bench. 

Saunders was preparing himself to argue the case as counsel 
for the Crown, when, to his utter astonishment, he received 
a letter from the Lord Keeper announcing his Majesty’s 
pleasure that he should be Chief Justice. He not only never 
had intrigued for the office, but his appointment to it had 
never entered his imagination; and he declared, probably 
with sincerity, that he would much sooner have remained at 
the bar, as he doubted whether he could continue to live with 
the tailor in Butcher Row, and he was afraid that all his 
favourite habits would be dislocated. This arrangement 
must have been suggested by cunning lawyers, who were 
distrustful of Pemberton, and were sure that Saunders might 
be relied upon. But Roger North ascribes it to Charles 
himself; not attempting, however, to disguise the corrupt 
motive for it. ‘ The King,” says he, “ observing him to be 
of a free disposition, loyal, friendly, and without greediness 
or guile, thought of him to be Chief Justice of the King’s 
Bench at that nice time. And the ministry could not but 
approve of it. So great a weight was then at stake as could 
not be trusted to men of doubtful principles, or such as anything 
might tempt to desert them.” * 

On the 23d of January, being the first day of Hilary Term, 
1683, Sir Edmund Saunders appeared at the bar of the Court 
of Chancery, in obedience to a writ requiring him to take 


* Life of Guilford, ii, 129. 


LIFE OF CHIEF JUSTICE SAUNDERS. 


upon himself the degree of Serjeant-at-law ; and distributed 
the usual number of gold rings, of the accustomed weight and 
fineness, with the courtly motto “ PRINCIPI SIC PLACUIT.” 
He then had his coif put on, and proceeded to the bar of 
the Common Pleas, where he went through the form of 
pleading a sham cause as a Serjeant. Next he was marched 
to the bar of the King’s Bench, where he saw the Lord 
Keeper on the bench, who made him a flowery oration, pre- 
tending “that Sir Francis Pemberton, at his own request, 
had been allowed to resign the office of Chief Justice of that 
Court, and that his Majesty, looking only to the good of 
his subjects, had selected as a successor him who was allowed 
to be the fittest, not only for learning, but for every other 
qualification.” The new Chief Justice, who often expressed 
a sincere dislike of palaver, contented himself with repeating 
the motto on his rings, “ PRINCIPI SIC PLACUIT ;” and, 
having taken the oaths, was placed on the bench, and at 
once began the business of the Court.* 

In a few days afterwards came on to be argued the great 
case of The King v. the Mayor and Commonalty of the City 
of London. Finch, the Solicitor General, appeared for the 
Crown; and Treby, the Recorder of London, for the defend- 
ants. The former was heard very favourably ; but the latter 
having contended that, even if the Bye-law and the Petition 
were illegal, they must be considered only as the acts of the 
individuals who had concurred in them, and could not affect 
the privileges of the body corporate—an ens legis, without 
a soul, and without the capacity of sinning, — Lord Chief 
Justice Saunders exclaimed — 

* According to your notion, never was one corporate act done by 
them: certainly, whatsoever the Common Council does, binds the 
whole; otherwise it is impossible for you to do any corporate act, 
for you never do, and never can, convene all the citizens. Then 
you say your Petition is no reflection on the King, but it says 
that by the prorogation public justice was interrupted. If so, by 
whom was public justice interrupted? Why, by the King! And 
is it no reflection on the King, that, instead of distributing justice 
to his people, he prevents them from obtaining justice? You must 





* 2 Shower, 264.; Sir Thomas Raymond, 478. 
F 2 


67 


CHAP. 
XXII. 





A.D. 1683. 


Hearing of 
the Quo 
Warranto. 


68 


CHAP. 
XXI. 





A.D. 1683. 


June 12, 
Saunders’s 
last illness, 


Judgment 
in the Quo 
Warranto. 


REIGN OF CHARLES II. 


allow that the accusation is either true or false. But, supposing it 
true that the King did amiss in proroguing the Parliament, the 
Common Council of London neither by charter nor prescription 
had any right to control him. ‘If the matter were not true (as it 
is not), the Petition is a mere calumny. But if you could justify 
the presenting of the Petition, how can you justify the printing of 
it, whereby the Mayor, Aldermen, and citizens of London do let 
all the nation know that the King, by the prorogation of Par- 
liament, hath given the public justice of the nation an interruption ? 
Pray, by what law, or custom, or charter, is this privilege of 
censure exercised? You stand forth as ‘chartered libertines.’ 
As for the impeecability of the corporation, and your doctrine that 
nothing which it does can affect its being, strange would be the 
result if that which the corporation does is not the act of the cor- 
poration, and if, the act being unlawful and wicked, the corporation 
shall be dispunishable. I tell you I deliver no opinion now, —I 
only mention some points worthy of consideration. Let the case 
be argued again next term.” 

In the ensuing term the case was again argued by Sawyer, 
the Attorney General, for the Crown, and Pollexfen for the 
City,—-when Lord Chief Justice Saunders said, “We shall 
take time to be advised of our opinion, but I cannot help now 
saying what a grievous thing it would be if a corporation 
cannot be forfeited or dissolved for any crime whatsoever. 
Then it is plain that you oust the King of his Quo Warranto, 
and that, as many corporations as there are, so many inde- 
pendent commonwealths are established in England. We 
shall look into the precedents, and give judgment next term.” 

When next term arrived, the Lord Chief Justice Saunders 
was on his deathbed. His course of life was so different 
from what it had been, and his diet and exercise so changed, 
that the constitution of his body could not sustain it, and he 
fell into an apoplexy and palsy, from which he never re- 
covered.* But, before his illness, he had secured the votes of 
his brethren. 

The judgment of the Court was pronounced by Mr. Justice 
Jones, the senior Puisne Judge, who said, — 


* Several times have we met and had conference about this 
matter, and we have waited on my Lord Saunders during his sick- 


* Life of Guilford, ii. 129. 


LIFE OF CHIEF JUSTICE SAUNDERS. 


ness often ; and, upon deliberation, we are unanimously of opinion 
that a corporation aggregate, such as the City of London, may be 
forfeited and seised into the King’s hands, on a breach of the trust 
reposed in it for the good government of the King’s subjects ; — 
that to assume the power of making bye-laws to levy money, is a 
just cause of forfeiture ; — and that the Petition in the pleadings 
mentioned is so scandalous to the King and his government, that 
it is a just cause of forfeiture. Therefore, this Court doth award 
that the liberties and franchises of the City of London be seised 
into the King’s hands.” 

This judgment was considered a prodigious triumph, but 
it led directly to the misgovernment which in little more 
than five years brought about the Revolution and the esta- 
blishment of a new dynasty. To guard against similar 
attempts in all time to come, the charters, liberties, and 
customs of the City of London were then confirmed, and for 
ever established, by act of parliament.* 

Saunders was Chief Justice so short a time, and this was 
so completely occupied with the great Quo WARRANTO Case, 
that I have little more to say of him asa Judge. We are 
told that “while he sat in the Court of King’s Bench he 
gave the rule to the general satisfaction of the lawyers.” f 

We have the account of only one trial before him at nist 
prius, —that of Pilkington, Lord Grey de Werke, and others, 
for a riot. Before the City of London was taken by a 
regular siege, an attempt had been made upon it by a coup 
de main. 'The scheme was to prevent the regular election of 
sheriffs, and to force upon the City the two Court candidates, 
who had only a small minority of electors in their favour. 
In spite of violence used on their behalf, the poll was going 
in favour of the liberal candidates, when the Lord Mayor, 
who had been gained over by the Government, pretended 
to adjourn the election to a future day. The existing 
sheriffs, who were the proper officers to preside, continued 
the poll, and declared the liberal candidates duly elected. 
Nevertheless, the Court candidates were sworn in as sheriffs, 
and those who had insisted on continuing the election after 


the pretended adjournment by the Lord Mayor were pro-: 


* 2 Shower, 275.; 8 St. Tr. 1039—1358. ¢ Life of Guilford, ii. 129. 
FS 


69 


CHAP. 
XXI.° 





A.D. 1683. . 


Saunders’s 
conduct at 
the trial of 
Rex v. 
Pilking- 
ton. 





REIGN OF CHARLES If. 


secuted for a riot. They pleaded not guilty, and, a jury to 
try them having been summoned by the new sheriffs, the 
trial came on at Guildhall before Lord Chief Justice Saunders. 
He was then much enfeebled in health, and the excitement 
produced by it was supposed to have been the cause of the 
fatal malady by which he was struck a few days after. 

The jury being called, the counsel for the defendants put 
in a challenge to the array, on the ground that the supposed 
sheriffs, by whom the jury had been returned, were not the 
lawful sheriffs of the City of London, and had an interest in 
the question : — 

LL. C.J. Saunders: “ Gentlemen, I am sorry you should have 
so bad an opinion of me, and think me so little of a lawyer, as not 
to know that this is but trifling, and has nothing init. Pray, 
gentlemen, do not put these things upon me.” Mr. Thompson: 
“‘T desire it may be read, my Lord.” L.C. J. Saunders: “You 
would not have done this before another judge; you would not 
have done it if Sir Matthew Hale had been here. ‘There is no 
law in it.” Mr. Thompson: “We desire it may be read.’’ 
LL. C. J. Saunders: “This is only to tickle the people.” The 
challenge, however, was read. Jeffreys: “ Here’s a tale of a tub 
indeed!” LZ. C. J. Saunders: “ Aye, it is nothing else, and I 
wonder that lawyers should put such a thing upon me,” Mr. 
Thompson : “ My Lord, we desire this challenge should be allowed.” 
L. C.J. Saunders : “ No, indeed, won’t I. There is no colour for it.” 
Mr. Thompson: “My Lord, is the fact true or false? If it be 
insufficient in point of law, let them demur.” Jeffreys: “ ‘Robin 
Hood on Greendale stood’!!! I pray for the King that it may be 
overruled.” Mr. Thompson: “My Lord, I say where a sheriff is 
interested in point of title, he is no person in law to return a jury. 
The very title to the office is here in question.” LZ. C. J. 
Saunders: “Mr. Thompson, methinks you have found out an 
invention, that the King should never have power to try it, even 
so long as the world stands. Who would you have the process go 
to?” Mr. Thompson: “'To the coroner.” L. C.J. Saunders: 
“* My speech is but bad; let me know what objection is made, and 
if I can but retain it in my memory, I don’t question but to give you 
satisfaction. ‘The sheriffs who returned the jury are sheriffs de 
facto, and their title cannot thus be inquired into. Wherever the 
defendant thinks it may go hard with him, are we to have a trial 
whether the sheriffs be sheriffs or no? What you are doing may 


LIFE OF CHIEF JUSTICE SAUNDERS. 


be done in every cause that may be trying.” Mr. Thompson: “ My 
Lord, we pray a bill of exceptions.” Jeffreys: “This discourse 
is only for discourse sake. Swear the jury.” L.C.J. Saunders: 
** Aye, swear the jury.” 

So far, he was right in point of law; but, when the trial 
proceeded upon the merits, to suit the purposes of the Go- 
vernment and to obtain a conviction he laid down doctrines 
which he must well have known to be indefensible respecting 
the power of the Lord Mayor to interrupt the poll by an 
adjournment, and the supposed offence of the electors in still 
continuing the election, they believing that they were ex- 
ercising a lawful franchise. Finally, in summing up to the 
jury, he observed, — 

*‘ But they pretend that the sheriffs were the men, and that the 
Lord Mayor was nobody; that shows that it was somewhat of the 
Commonwealth seed that was like to grow up among the good 
corn.” [Here, the report says, the people hummed and interrupted 
my Lord. He thus continued.] “ Pray, gentlemen, that is a very 
indecent thing; you put an indignity upon the King. Pray, 
gentlemen, forbear ; such demeanour does not become a court of 
justice. When things were topsy-turvy I can’t tell what was 
done, and I would be loth to have it raked up now. These 
defendants tell you that they believed they were acting according 
to law, but ignorance of the law is now no excuse, and you will 
consider whether they did not in a tumultuary way make a riot to 
set up a magistracy by the power of the people? Gentlemen, it 
hath been a long trial, and it may be I have not taken it well; my 
memory is bad, and I am but weak: I don’t question but your 
memories are better than mine. Consider your verdict, and find 
as many guilty as you think fit.” 

The jury having been carefully packed, the defendants 
were all found guilty, and they were heavily fined ; but, after 
the Revolution, this judgment was reversed by the legis- 
lature.* . 

During Lord Chief Justice Saunders’s last illness the Rye- 
house Plot was discovered, and it was a heavy disappointment 
to the Government that no further aid could be expected 
from him in the measures still contemplated for cutting off 


the Whig leaders and depressing the Whig party. His 


* 9 St. Tr. 187—298. 
F 4 


ol 


CHAP. 
XXI. 


A.D. 1683. 


CHAP. 
XXI. 


A.D. 1683, 


His death. 


His ap- 
pearance, 
manners, 
and habits. 


REIGN OF CHARLES II. 


hopeless condition being ascertained, he was deserted and 
neglected by all his Whitehall patrons, who had lately been 
so attentive to him, and he received kindness only from 
humble dependants and some young lawyers, who, notwith- 
standing all his faults, had been attached to him from his 
singular good-humour. 

A few minutes after ten o’clock in the forenoon of Tues- 
day, the 19th of June, 1683, he expired in a house at 
Parson’s Green, to which he had unwillingly transferred 
himself from Butcher Row when promoted to be Chief 
Justice.* His exact age was not known, but he was not 
supposed to be much turned of fifty, although a stranger 
who saw him for the first time would have taken him to be 
considerably more advanced in life. Of his appearance, his 
manners, and his habits, we have, from one who knew him in- 
timately, the following graphic account, which it would be a 
sin to abridge or to alter: — 

* As to his person, he was very corpulent and beastly ;—a 
mere lump of morbid flesh. He used to say ‘by his troggs (such 
an humorous way of talking he affected) none could say he wanted 
issue of his body, for he had nine in his back” He was a fetid 
mass that offended his neighbours at the bar in the sharpest degree. 
Those whose ill-fortune it was to stand near him were confessors, 
and in summer-time almost martyrs. This hateful decay of his 
carcase came upon him by continual sottishness ; for, to say 
nothing of brandy, he was seldom without a pot of ale at his nose, 
or near him. ‘That exercise was all he used; the rest of his life 
was sitting at his desk or piping at home; and that home was a 
tailor’s house, in Butcher Row, called his lodging, and the man’s 
wife was his nurse or worse: but by virtue of his money, of which 
he made little account, though he got a great deal, he soon became 
master of the family ; and, being no changeling, he never removed, 
but was true to his friends and they to him to the last hour of his 
life. With all this, he had a goodness of nature and disposition 
in so great a degree that he may be deservedly styled a phi- 
lanthrope. He was a very Silenus to the boys, as in this place 
I may term the students of the law, to make them merry when 
ever they had a mind to it. He had nothing of rigid or austere 
in him. If any near him at the bar grumbled at his stench, 
he ever converted the complaint into content and laughing 


_* 3 Mod, 25. 


LIFE OF CHIEF JUSTICE SAUNDERS. 


with the abundance of his wit. As to his ordinary dealing, he 
was as honest as the driven snow was white; and why not, having 
no regard for money or desire to be rich? And for good nature 
and condescension, there was not his fellow. I have seen him 
for hours and half hours together before the court sat, stand at 
the bar, with an audience of students over against him, putting of 
cases, and debating so as suited their capacities and encouraged 
their industry. And so in the Temple, he seldom moved without 
a parcel of youths hanging about him, and he merry and jesting 
with them. Once, after he was in the King’s business, he dined 
with the Lord Keeper, and there he showed another qualification 
he had acquired, and that was to play jigs upon an harpsichord, 
haying taught himself with the opportunity of an old virginal of 
his landlady’s ; but in such a manner, not for defect but figure, as 
to see him was ajest.” * 

I have not to give a relation of peers, baronets, or knights, 
descended from this Chief Justice, as he was never married, 
but he has nevertheless contributed to the “ Grandeur of the 
Law” by his RErorts, which are so entertaining as well as 
instructive that they have instilled into many a taste for 
juridical study, notwithstanding its imagined dryness, proving 
our science to be — 


* Not harsh and erabbed, as dull fools suppose, 
But — a perpetual feast of nectar’d sweets, 
Where no crude surfeit reigns.” + 


Notwithstanding his carelessness about money, he left 
considerable property behind him. This he disposed of by a 
will, dated 23d of August, 1676, — republished 2d of Sept. 
1681, and proved by sentence of the Prerogative Court on the 
14th of July, 1683, —whereby he gives to Mary Gutheridge 
his lease of the Bishop’s land, “ which will come to her by 
special occupancy as being my heir at law ;” and he bequeaths 
legacies to his father and mother Gregory, his sister Frances 
Hall, his old aunt Saunders, and his cousin Sarah Hoare. 
Among other charitable bequests, he leaves to the poor of the 
parish of Barnwood, in the county of Gloucester, where he 
drew his first breath, the sum of 202. to be distributed at the 

* Life of Guilford, ii. 126—129.; and see Granger, iii. 367. 

t The editions of these Reports by the late Serjeant Williams, and by the 
present most learned Judges, Mr. Justice Patteson and Mr. Justice Vaughan 


Williams, illustrated by admirable notes, may be said to embody the whole com- 
mon law of England, scattered about, I must confess, rather immethodically. 





How he 
has contri- 
buted to 
the 

* Grandeur 
of the 
Law.” 


His will. 


74 


CHAP. 
XXI. 


His armo- 
rial bear- 
ings. 


REIGN OF CHARLES II. 


discretion of his father Gregory if he shall be living. His 
friends Nathaniel Earle and Jane his wife (the master and 
mistress of the house in which he lodged in Butcher Row) 
he appoints his executor and executrix and residuary legatees, 
*‘as some recompense for their care of him, and attendance 
upon him, for many years.”* 

His armorial bearings, which must have been granted to 
him when he was knighted, have been discovered by the 
diligence of that skilful antiquary, Mr. Pulman, Deputy 
Usher of the Black Rod; and, with those of the other Chief 
Justices from the earliest times, now ornament the splendid 
library of the House of Lords in the new palace at West- 
minster. 


* Will in C. P. C, Reg. 147. Drax. 


REIGN OF CHARLES II. 


CHAPTER XXII. 


CHIEF JUSTICES FROM THE DEATH OF SIR EDMUND SAUNDERS 
TILL THE REVOLUTION, 


On the sudden death of Saunders, there was much perplexity 
as to the appointment of his successor. His want of political 
principle and his immoralities had been to a certain degree 
counterbalanced by his profound knowledge of the law, his 
mildness of disposition, and his popular manners. The can- 
didate eagerly pressing forward his claims, and supported 
by the most unscrupulous courtiers, was notoriously desti- 
tute of public or private virtue, — knew nothing of his pro- 
fession beyond what he had picked up in Old Bailey practice, 
— was brutally offensive in his deportment to all who were 
opposed to him; and, acting as a subordinate judge, had, 
on various occasions, set at defiance the rules of decency 
and the dictates of humanity. Even Charles II. himself — 
who, in making appointments, did not stand upon trifles as 
far as character was concerned, and who had been pleased to 
see sitting in his council Shaftesbury, who boasted of being, 
next to himself, the most profligate man in England— shud- 
dered at the approach of Jeffreys, saying, “ That man has no 
learning, no sense, no manners, and more impudence than ten 
carted street-walkers.” 

Meanwhile, the trials arising out of the Rye-house Plot 
were coming on, and vengeance was to be taken on the Whigs 
for their vigorous and often successful opposition to the 
measures of the Court since the Sovereign of England had 
degraded himself into a viceroy of France. Good hopes had 
been entertained of Pemberton for presiding Judge, as he had 
received a severe warning against his occasional displays of 
independence by being removed from the King’s Bench to 
the Common Pleas, with hints of the further punishment 


75 


CHAP: 
XXII. 





Jeffreys 
Chief 
Justice of 
the King’s 
Bench. 


76 


CHAP, 
XXII. 





Reference 
to the 
Lives of the 
Chancel- 
lors. 


Additions 
to the 

* Life of 

Jeffreys,” 


REIGN OF CHARLES II. 


that might await him if he should not be more zealous in 
the public service. But he had nearly allowed Lord Russell 
to escape; and it was foreseen that, notwithstanding his 
timidity, he must necessarily direct the acquittal of Sydney, 
against whom there was no case, without making an old 
MS. essay on the speculative principles of government, found 
among his papers, an overt act of high treason. ‘ Work was 
to be done which could be trusted to no man who reverenced 
law, or was sensible of shame.”* Accordingly, there was 
placed in the supreme seat of justice, knowingly and de- 
signedly, one of the most infamous wretches who ever wore 
the human form, and whose atrocities, when elevated to 
power, were not more revolting than might have been expected 
from his established character and past conduct. * All people 
were apprehensive of very black designs when they saw 
Jeffreys made Lord Chief Justice, who was scandalously 
vicious, and was drunk every day; besides a drunkenness of. 
fury in his temper that looked like enthusiasm.” + 

It would now be my duty to trace the extraordinary career 
of this monster, from his birth in an obscure Welsh village, 
to his death in the Tower of London, if I had not already 
done so in my “ LivES OF THE CHANCELLORS.” Subse- 
quent researches suggest little addition to the facts I have 
already narrated concerning him and no mitigation of the 
sentence of infamy which I have pronounced upon him. As 
a further proof of his contempt of decency on the bench, I 
may mention that on the trial of the learned and pious divine 
Richard Baxter, after exclaiming, in his own naturally violent 
tone, “ This is an old rogue, a schismatical knave, a hypo- 
critical villain; he hates the liturgy; he would have nothing 
but long-winded cant without book,” the Lord Chief Justice 
suddenly turned up his eyes, clasped his hands, and began to 
sing through his nose, in imitation of what he supposed to be 
Baxter’s style of praying, “ Lorp, WE ARE THY PEOPLE! 
THY PECULIAR PEOPLE!! THy DEAR PEOPLE!!!” + 

I ought to have dwelt more upon his venality during the 


* Macaulay, i. 452. { Burnet, O. T., ii, 231, 
+ 10 St. Tr. 1315.; Life of Baxter, ch. xiy. 


LIFE OF CHIEF JUSTICE JEFFREYS. 


“ Bloody Assizes,” for of the 841 prisoners whose lives were 
spared, and who were transported as slaves to the colonies, 
many were sold on’ his own account, and, long as was the 
voyage, and sickly, he calculated that from the state of the 
slave market, after all charges were paid, they would average 
152 a head.* But the proceeds of all these sales did not 
fetch him so much as a single pardon. Most of the men 
accused of joining Monmouth were from the lower ranks 
of life, and, except in the sale of their persons, they could be 
turned to little profit, for they could muster only a very 
small bribe to be let off, and, if convicted and executed, their 
forfeited property was seldom more than a flock of geese or a 
flitch of bacon. The Chief Justice was therefore delighted 
to find that he had got in his toils Edward Prideaux, who 
had inherited broad lands from his father, an eminent lawyer 
in the time of the Commonwealth, and who, without having 
been in arms, was suspected of favouring the rebellion. 
Although no witnesses could be got to swear against this 
gentleman, he wisely agreed to pay 15,0007. for his liberation. 
With his ransom Jeffreys became the purchaser of a large 
estate, the name of which the people changed to Aceldama, 
as being purchased with the price of innocent blood.+ 

I ought, likewise, to have stated, as another instance of his 
unexampled cruelty, that, after his return from the west, and 
receiving the great seal, on the very day on which Alderman 
Cornish was hanged and beheaded in Cheapside, he caused 
Elizabeth Gaunt to be burned alive at Tyburn, for having 
piteously given shelter to a fugitive who betrayed her. She 
was a Sister of Charity: her life had been passed in re- 
lieving the unhappy of all religious denominations, and she 
was well known as a constant visitor of the gaols in the hope 
of enlightening and reforming their unhappy inmates. She 
met her fate with great composure; leaving behind her a 
paper in which, after describing what she had suffered from 
the ferocity of her gaoler, and others who had oppressed her, 
she complained of “the tyranny of him, the great one of all, 


* Original letters in the State Paper Office: Sunderland to Jeffreys, Sept. 
14. 1685; Jeffreys to the King, Sept. 19. 1685. : 
$+ Commons’ Journals, Oct. 9., Noy. 10., Dec. 26. 1690; Oldmixon, 706. 


78 


CHAP. 
XXII. 


Supposed 
reluctance 
of Jeffreys 
to support 
James 
against the 
Protestant 
religion. 


LIFE OF CHIEF JUSTICE JEFFREYS. * 
to whose pleasure she and so many other victims had been 
sacrificed — declaring that in as far as they had injured her- 
self she forgave them, but, in that they were implacable ene- 
mies of that good cause which would yet revive and flourish, 
she left them to the judgment of the King of Kings.” * 

To show that the memory of his cruelties remained in the 
country in which they were most conspicuously exhibited, so 
as to raise a desire to visit them on his descendants to the 
third generation, —I should likewise wish to add the anec- 
dote that when he had been many years dead, and his name 
and title were extinct, the Countess of Pomfret, travelling 
into the west of England, having been discovered to be his 
granddaughter, was insulted by the populace, and could not 
venture to proceed to the scene of the “‘ Bloody Assizes.” f 

It has been objected to me, that I have done injustice to 
Jeffreys, by representing that he readily acquiesced in all 
James’s measures for overturning the religion and liberties 
of his country, whereas he condemned many of them. This 
charge against me is founded merely on proofs of the hypo- 
crisy and duplicity of the great delinquent. He did pretend 
to some, who were in opposition to the Court, that his Pro- 
testant conscience was shocked by the scheme of bringing in 
Popery; but at the same time he put the broad seal to the 
Declaration of Indulgence, and, sitting in the illegal Court 
of High Commission, he abetted all the proceedings for con- 
verting Magdalene College, Oxford, into a Popish seminary. 
« The two French agents, who were then resident in London, 
had very judiciously divided the English Court between 
them. Bonrepaux was constantly with Rochester; and 
Barillon lived with Sunderland. Lewis was informed in the 
same week by Bonrepaux that the Chancellor was entirely 
with the Treasurer, and by Barillon that the Chancellor was 
in league with the Secretary.”{ Again: Jeffreys gave out to 
one party that he highly disapproved of the proceedings 
against the Seven Bishops, while it is quite certain that he 


: * 11 St. Tr. 381—455.; Burnet, O. T., i. 649. 
+ Granger, “ Jeffreys.” 
$ Macaulay, ii. 67., cites Reresby’s Memoirs; Luttrell’s Diary, Feb. 2. 


. Jan. 25 
5. . peo. 5 
168§; Barillon, Feb. 4; Bonrepaux, 7p7q 


LIFE OF CHIEF JUSTICE JEFFREYS. 


declared in council, “ The Government would be disgraced 
if such transgressors were suffered to escape, as was proposed 
by Sunderland, with a mere reprimand,” * and that he stre- 
nuously recommended the criminal information on which 
they were brought to trial — counting with certainty on a 
conviction which would induce the right reverend defendants 
to save themselves from ruinous fines and long imprison- 
ments by serving, both in and out of parliament, the designs 
of the Sovereign.” f 

Jeffreys held the office of Chief Justice of the King’s 
Bench rather more than two years, having been reappointed 
to it on the death of Charles II. by James I., who had been 
his early patron, and to whom he was more and more en- 
deared as his inhuman disposition was more and more deve- 
loped. Being created a peer, and introduced into the Cabinet, 
he soon undermined, by his superior vigour and servility, 
the influence of the Lord Keeper Guilford, and, having 
broken the heart of that mean-spirited but not unamiable 
man, his ‘‘ campaign in the west” was rewarded with the 
great seal. 

A month was occupied in considering who should succeed 
him as Chief Justice of the King’s Bench. Although Mon- 
mouth had been executed, and the blood of rebels had flowed 
till the feelings of all classes were outraged, and even the 
vengeance of James himself was satiated, the due filling up 
of the office was considered a matter of the last importance 
to the Government. The plan to change the religion of the 
country was now formed, and this was to be carried into 
effect by judicial decision rather than by military violence. 
The King expected to accomplish his object by extending 
what was called the “dispensing power” to all the laws of 
the realm, although it had been hitherto confined to common 
penal statutes, which were enforced by a pecuniary mulct. 
Where was a man to be found who, as head of the Common 


* Journal of second Lord Clarendon, June 24. 1688. ; 12 St. Tr. 195. 
{ This has been placed beyond all doubt by the original despatches of the 


French and Dutch ministers examined by Mr. Macaulay. Barillon, Bt 
1688; Citters, July 4; Adda, Foe June +. 


79 


CHAP. 
XXII. 





Vacancy in 
the office of 
Chief Jus~ 
tice of the 
King’s 
Bench on 
the pro- 
motion of 
Jeffreys to 
be Lord 
Chancellor. 


Sept. 29. 
1685. 


Perplexity 
about his 
successor. 


80 


CHAP. 
XXII. 





Sir Edward 
Herbert se- 
_ lected on 
account of 
his opinion 
on the 

“« dispens- 
ing 
power.” 


His origin. 


LIFE OF CHIEF JUSTICE HERBERT. 


Law Judges, would himself declare, and would induce a ma- 
jority of his brethren to join with him in declaring, that the 
King had the power contended for,— or, in other words, 
that, like the despotic princes on the Continent, he was above 
the law? That man was Sir Epwarp HERBERT! Of his 
steadiness on this question no doubt could be entertained — 
but when his appointment was recommended, two objections 
presented themselves: 1st. That he was quite ignorant of his 
profession; 2dly. That he was conscientious in his opinions, 
and of strictly honourable principles in private life. The former 
was easily surmounted from his known zeal in support of 
the prerogative; and though it was anticipated that some in- 
convenience might arise from his vicious habit of abstaining 
from what he believed to be wrong, hopes were entertained 
that, from his ultra-Tory notions, he would not boggle at 
any thing which might be required of him. Upon the whole, 
the opinion at Whitehall was, that, for the King’s service, a 
safer choice could not be made. Accordingly, on the 11th 
of October, 1685, Sir Edward Herbert took his seat as Chief 
Justice of the Court of King’s Bench, and I am called upon 
to give a sketch of his life. 

He was the youngest son of that Sir Edward Herbert whom 
I have commemorated as holding the great seal of England 
while in exile with Charles II.* During the Commonwealth, 
the children of the titular Lord Chancellor remained in 
England with their mother; and, after his death at Paris, 
in 1657, they were reduced to great indigence. Edward was 
admitted on the foundation of Winchester School, and was 
elected from thence a probationer fellow to New College, 
Oxford. He was idle and volatile, but much liked for his 
warmth of heart and gentlemanly demeanour. He inherited 
a strong abhorrence of Roundheads, and he considered the 
Whigs as the same republican party under another name. 
From his earliest recollection to his latest breath, he looked 
upon the five members of the House of Commons whom his 
father, when Attorney General, had impeached of high treason 
by order of Charles I., as not less guilty than the regicides 
who had sat in the high court of justice; and he thought it 


* Lives of the Chancellors, vol. ili. ch. Ixxili. 


LIFE OF CHIEF JUSTICE HERBERT. 


of essential importance for the public good that the Crown 
should be armed with sufficient power to put down and to 
punish all who were inclined to sedition or schism. 

With this bias on his mind, he began the study of the law 
in the Middle Temple, and, setting down all the arbitrary 
decisions of judges for sound law, and all the violent acts of 
the executive government for good constitutional precedents, 
while he imputed everything that he met with on the other 
side to faction and popular delusion, he brought himself to 
the belief that the kings of England were absolute at all 
points, with a very few exceptions; and that, although they 
might find it convenient to consult a parliament, they might 
rule, if they chose, by their own authority. But his know- 
ledge of law was superficial, and was confined almost exclu- 
sively to cases connected with politics. 

Under Charles II. there was a disposition to do as much 
as possible for the Herberts, on account of the sufferings of 
their father in the royal cause ; and the two elder sons were 
pushed on in the army and navy: but there was much diffi- 
culty in making any provision for Edward, who was called 
a lawyer, but was wholly unacquainted with the first prin- 
ciples of pleading and conveyancing ; and, never having been 
intrusted with a brief by a private client, could not, without 
serious risk, be allowed to appear in the King’s business in 
Westminster Hall. It was thought, however, that any thing 
would do for Attorney General in Ireland, where they have 
never been very exact in legal formalities. Accordingly, he 
was sent over there, and for several years was supposed to 
execute the duties of the office decently well under the 
Duke of Ormond, the popular Lord Lieutenant. A residence 
in Dublin was then considered distant banishment. The transit 
from thence to London was often attended with great peril 
and delay, and intelligence was interchanged between the 
two islands very irregularly. He therefore longed for a 
return to civilised life, for which he had a keen relish; 
and, having laid by a little money, he resigned the Irish 
Attorney Generalship, and came to push his fortune at 
Whitehall. Still pretending to practise at the bar, he re- 

VOL. Il. G 


81 


CHAP. 
XXII. 


Formation 
of his poli- 
tical creed. 


He is sent 

as Attorney 
General to 

Treland, 


82 


CHAP. 
XXII. 


A.D. 1683. 


His posi- 
tion on his 
return, 


A.pD. 1685. 


LIFE OF CHIEF JUSTICE HERBERT. 


ceived a silk gown. The English attorneys were as shy of 
employing him as when he wore bombazin; but his con- 
nections, his principles, and his agreeable manners neverthe- 
less obtained him favour at Court. He succeeded Sir George 
Jeffreys as Chief Justice of Chester; and soon after, on the 
promotion of Sir John Churchill to be Master of the Rolls, 
he was appointed Attorney General to the Duke of York, 
and was knighted. Now he was often consulted on consti- 
tutional questions by his royal master, the heir presumptive ; 
who, much pleased with the answers returned, set him down 
as fit to fill the highest offices in the law. He was particu- 
larly firm respecting the dispensing power* ; and—notwith- 
standing the doubts upon the subject indicated by high 
prerogative lawyers, such as Lord Clarendon, Lord Keeper 
Bridgman, Lord Chancellor Nottingham, and Lord Keeper 
Guilford — maintained that the royal assent was given to bills 
passed by the two Houses of Parliament on the implied con- 
dition that the King might suspend the operation of the law 
when necessary for the public safety; and that, this power 
being essentially inherent in the Crown, no statute could take 
it away, or abridge it. He was of the school of political 
speculators which produced Filmer, Lestrange, and Brady, 
—maintaining that the Crown is the only legitimate source 
of authority; that the House of Commons, having been 
created by the Crown, is subordinate to the Crown; and 
that, as it may still be prorogued or dissolved, as well as 
summoned, by the Crown, the Crown is entitled to exercise 
a paramount control over all its acts. He sometimes made 
a distinction between the King’s power over common law 
and statute law; but, although he was known not to be 
without some scruples which might be troublesome, his 
friends said they would all melt away before his burning 


loyalty. 


* Clarke, in his Life of James II., mainly rests his justification of that 
monarch’s conduct on the authority of Herbert. Speaking of the Test Act, he 
says, ‘ One great inducement not to boggle at dispensing with it, was his calling 
to mind that in the late King’s time, after his return from Scotland, and that 
he began to be much employed in his business, Mr. Herbert, then Ch. Justice 
of Chester, told him, that if he desired to re-enter into his former employment, 
he could make it appear that it was in the King’s power to dispense with the 
Test Act.” 


LIFE OF CHIEF JUSTICE HERBERT. 


He is not once mentioned in the Reports: he had never 
led any important cause, or argued any important point of 
law, inan English court; and, although he regularly attended 
the King’s Bench in term time, it was for society rather 
than for business. He was considered a sort of dilettante 
lawyer, and probably he himself thought not of a higher 
office than that of Chief Justice of Chester, which only 
occupied a few days of his time twice a year. It is quite 
certain that he never solicited, or in any way intrigued for, 
the office of Chief Justice of the King’s Bench, so that he 
was greatly astonished when it was offered to him. He did 
not hesitate to accept it when he was told that the King 
required his services. 

There is no record of the ceremony of his installation. 
The merits and sufferings of his father must have constituted 
the staple of the Chancellor’s address to him; and his answer 
must have been confined to the expression of gratitude for 
the unexpected dignity, and sincere good intentions in the 
fulfilment of his new duties. * 

The profession and the public, without nicely scanning his 
legal qualifications, were pleased to see mildness, equanimity, 
and sobriety again adorning the seat of justice, lately dis- 
graced by fierceness, violence, and drunkenness. Even those 
who most highly disapproved of his politics were disposed to 
speak kindly of him. Says Burnet, “He was a well bred 
and a virtuous man, generous and good natured, although an 
indifferent lawyer. He unhappily got into a set of very 
high notions with relation to the King’s prerogative. His 
gravity and virtues gave him great advantages; chiefly his 
succeeding such a monster.” f 

He was sworn a member of the Privy Council, but he 
was never admitted into the Cabinet. 

In the private cases which came before him he was entirely 
guided by the opinion of the Puisne Judges; and, by dis- 
eretion, and speaking only as he was prompted, he made a 
very respectable appearance, and the vulgar called him a 
great Judge. 

* See 2 Shower, 434.; 3 Modern Reports, 71. 


+ Burnet, O. T., ii. 362, 363. 
a 2 


83 


CHAP. 
XXII. 


A.D. 1685, 


He is made 
Chief Jus- 
tice of the 
King’s 
Bench. 


October. 
Favourable 
inclination 
towards 
him, not- 
withstand- 
ing his un- 
fitness. 


84 


CHAP. 
XXII. 


A.D. 1686. 
Opinion 
delivered 
by him on 
the trial of 
Lord Dela- 
mere. 


REIGN OF JAMES II. 


The first political case in which an opinion was required 
from him was the prosecution of Lord Delamere for high 
treason ; and, as the prerogative of the Crown was not con- 
cerned in the question submitted to him, he displayed on this 
occasion moderation and diffidence. ‘The noble lord, the ob- 
ject of the prosecution, had, when a member of the House 
of Commons, given mortal offence to Jeffreys, who now sat 
as his judge, and was eager to convict him. The trial took 
place before the Lord High Steward and a select number of 
Peers, — the Judges attending as assessors. The whole day 
being spent in giving evidence for the Crown, the noble 
prisoner applied for an ajournment till next morning, before 
opening his defence Jeffreys determined, if possible, to 
sentence him to be hanged, beheaded, and quartered before 
going to sleep; but, desirous to keep up appearances, and to 
throw upon others the odium of the precipitation which he 
desired, said he would willingly comply with the request if 
the law would allow of an adjournment, which much doubting, 
he would put the question to the Judges. His real inclin- 
ation being well known to them, he expected (what he would 
have pronounced under the like circumstances) a flat nega- 
tive upon the power of adjournment. But Lord Chief 
Justice Herbert said, — 

“The Judges presume to acquaint your Grace that this is a 
matter wholly new to them, and that they know not, upon recol- 
lection of all that they can remember to have read, either that 
this matter was done or questioned. Had it received a determina- 
tion, and been reported in our books, our duty would have been 
to contribute all our reading and experience for the satisfaction of 
this great Court; but being a new question, and the precedent 
being to make a rule respecting the powers and privileges of the 
Peers for the time to come, we cannot venture to resolve it. In 
the case of the trial of a peer in parliament, there have been ad- 
journments from day to day; but whether it makes a difference 
that here the Lord High Steward sits judge, and the Peers-triers 
are in the nature of a jury, we submit to your Grace’s con- 
sideration. In an inferior court the jury, once sworn, are not 
allowed to separate, from the fear of corruption; but that reason 
seems to fail here, the prisoner being to be tried by his peers, that 
are men of unsuspected integrity, and give their verdict upon their 
honour.” 


LIFE OF CHIEF JUSTICE HERBERT. 


The Peers, upon this, were for adjourning, but Jeffreys in 
a rage said “that the court was his, and that, he sitting 
as sole judge in it, they had no right to regulate its pro- 
ceedings.” He then gave a decided judgment that he could 
not and would not adjourn, and he ordered the prisoner to 
go on with his defence, saying that “ by law the trial must 
finish before they separated.” Nevertheless he was dis- 
appointed of his prey, for Lord Delamere made an admirable 
defence, and the Peers, sympathising with him on account of 
the harsh treatment he had received, unanimously acquitted 
him. * 

Soon after came on the grand question with a view to 
which Herbert had been appointed Chief Justice, and he 
fully answered the expectation which had been formed of 
him. 

Judicially to establish the dispensing power, a sham action 
was brought by the coachman of Sir Edward Hales against 
Sir Edward Hales, his master. The defendant, although a 
Roman Catholic, had been appointed Lieutenant of the Tower 
of London; and the declaration alleged that, contrary to the 
provisions of the Test Act, he had exercised the duties of 
the office without having made the declaration against tran- 
substantiation or taken the oath of supremacy. By way 
of justification, he pleaded “that after the grant of the 
office the King, by letters-patent under the great seal, not- 
withstanding any statutes or laws in that behalf, dispensed 
with his making the declaration against transubstantiation 
and with his taking the oath of supremacy, as well as with 
his receiving the sacrament according to the rites of the 
Church of England.” The plaintiff demurred, admitting the 
dispensation and praying judgment upon its validity, Thus 
the existence of the dispensing power was regularly raised on 
the record, and was to be solemnly decided. 

The Chief Justice, although he had no doubts himself, 
found it a more difficult task than he had anticipated to 
prevail upon the other Judges to agree with him. According 
to the usual custom of those days, before the case was argued 
in court he assembled all the Judges to deliver their 


* 11 St. Tr. 510—599. 
G 3 


85 


CHAP. 
XXII, 


A.D. 1686, 


Sir Edward 
Hales’s 
Case to es- 
tablish the 
Dispensing 
Power. 


86 


CHAP. 
XXII. 


A.D. 1686. 
Opposition 
of some of 


the Judges, 


Dissentient 
Judges are 
dismissed. 


REIGN OF JAMES II. 


opinion upon it. To his unspeakable surprise, there were 
four Judges who declared that the King had no power to 
dispense with a statute which Parliament had enacted for the 
preservation of the established religion of the country. ‘Their 
opposition was the less suspected because they were all four 
steady Tories, although not of such extravagantly high pre- 
rogative principles as Herbert himself; and they had all four 
sat on the trials of Alderman Cornish and Elizabeth Gaunt, 
where there had been an extraordinary compliance with the 
wishes of the Government. Their contumacy being reported 
to the King, he summoned them into his presence, and con- 
versed with them at Whitehall, but could make no impression 
upon any of them either by soft or angry language. He 
thought he might safely calculate upon their supporting him 
in any violation of the constitution; but he forgot that 
where religion mixes in a controversy it is impossible to 
foretel with certainty what will be the conduct of any indi- 
vidual or of any body of men. “ Jones, the Chief Justice of 
the Common Pleas, a man who had never before shrunk from 
any drudgery, however cruel or servile, now held, in the 
royal closet, language which might have become the lips of 
the purest magistrates in our history.” * Being told that he 
must either give up his opinion or his place, “ For my place,” 
he answered, “I care little; Iam old and worn out in the 
service of the Crown; but I am mortified to find that your 
Majesty thinks me capable of giving a judgment which none 
but an ignorant or a dishonest man could give.” King: “1 
am determined to have twelve lawyers for judges who will be 
all of my mind as to this matter.” C. J. Jones: “ Your Majesty 
may find twelve judges of your mind, but hardly twelve 
lawyers.” James always piqued himself on being a man of 
his word, and Jones had his quietus next morning. With 
him were dismissed Montagu, Chief Baron of the Exchequer, 
and two puisnies, Neville and Charlton. Four new Judges 
were appointed, who had taken the royal test by declaring 
their belief in the unlimited, illimitable, and eternal nature 
of the dispensing power. One of them was the brother of the 
author of ‘ Paradise Lost,” and of the “ Defence of the 
People of England for putting Charles I. to death.” Sir 


* Macaulay, ii, 82. 


LIFE OF CHIEF JUSTICE HERBERT. 


‘Christopher Milton, recommended by Herbert, was in all 
respects a striking contrast to John, as he was not only a 
favourer of Popery, and a friend to arbitrary power, but the 
dullest of mankind.* 

Some delay still arose in carrying the case to a hearing, 
for Sawyer, the Attorney General, who had brought Russell 
and Sydney to the block, refused to argue this sham demurrer 
in favour of an attempt “ to annul the whole statute law from 
the accession of Elizabeth.” Heneage Finch, the Solicitor 
General, following his example, was turned out of office; and 
time was required for the mean-spirited Powys, who succeeded 
him, to prepare for his dirty work. 

At last the farce was acted, Northey taking the part of 
counsel for the plaintiff, and pretending to argue that the 
dispensation was no bar to the action; while the new Solicitor 
General urged that the King’s prerogative was and is as 
much the law of England as any statute, and that, although 
the King cannot prejudice private right, the power of dis- 
pensing with all public statutes was inseparably annexed to 
his crown. 

At the close of the argument, Herbert, C. J., said, with 
much gravity, that “the Court would take time to consider,” 
and on a subsequent day he delivered the following judg- 
ment : — 

“ This is a case of great consequence, but of as little difficulty 
as ever any case was that raised so great an expectation. If the 
King cannot dispense with this statute, he cannot dispense with 
any penal law whatsoever. There is no law but may be dispensed 
with by the supreme lawgiver. The laws of God may be dis- 
pensed with by God himself, as appears by God’s command 
to Abraham to offer up his son Isaac. So, likewise, the law of 
man may be dispensed with by the legislator. A law may be 
either too wide or too narrow; the wisest lawgiver cannot foresee 
all the consequences of a law, and therefore there must be a power 
somewhere able to dispense with it. We have consulted our 
brethren who have met and conferred on the subject at Serjeants’ 
Inn, and, with one exception, they all agree with us in the 


* Although not reconciled to Rome, he came so near her, that he would 
not communicate with the Church of England. Echard, iii. 797.; Kennet, iii, 
451. 

a 4 


87 


CHAP. 
XXIL 


A.D. 1686. 


June 16, 


Judgment 
of Chief 
Justice 
Herbert. 


88 


CHAP. 
XXII. 


A.D. 1686. 


Sham dis- 
sent of 
Judge 
Street, 


REIGN OF JAMES II. 


‘ 


opinion that the kings of England are absolute sovereigns ; that 
the laws of England are the King’s laws; that the King has power 
to dispense with any of his laws as he sees necessity for it; that 
the King is the sole judge of that necessity ; and that this is not 
a trust invested in or granted to the King by the people, but the 
ancient sovereign power and prerogative of the kings of England, 
which never yet was taken from them nor can be by parliament or 
any human means. My brother Street, indeed, is of opinion that 
the King, notwithstanding his general dispensing power, cannot 
validly grant the dispensation pleaded by the defendant; but that 
is the opinion of one single judge against the opinion of eleven. 
We therefore give judgment for the defendant.” * 

Without the privity of Herbert, who was too honourable a 
man to have countenanced such trickery, Street, who was 
known to be the most servile Judge on the bench, who would 
have been instantly turned adrift if he had been sincerely 
opposed to the dispensing power, but who cared as little for 
religion as for law, had been ordered to dissent, for the pur- 
pose of leading the public to believe that the Judges, left to 
the freedom of their own will, had decided for the Crown by 
a vast majority, without being entirely unanimous. So in- 
famous a wretch was Street, that, at the Revolution, on the 
strength of this collusive dissent, he attempted to make court 
to King William ; but, his real baseness being exposed, he met 
with a mortifying rebuff f 

Upon this judgment Sir Robert Atkyns, then an ousted 
Judge (afterwards made Chief Baron of the Exchequer), 


* 11 St. Tr. 1165—1198. 
+ “ Dec. 27. 1688. Tuesday, in the morning, I went to St. James’s with 


Judge Street to present him to the Prince; but I was told the Prince was busy, 


and I could not get admittance. While I was in the outward room, my Lord 
Coote came to me and told me he was sorry to see me patronise Street. He did 
not join in the judgment for the dispensing power ; but he is a very ill man. I 
have given the Prince a true character of him; and therefore I desire your 
Lordship will not concern yourself any more for him.” — Diary of Henry, Earl 
of Clarendon, 

However, when Judge Street died, a splendid marble monument was erected 
to his memory, with an inscription which asserts that he was the only honest 
Judge in the reign of James II. ; and thus concludes : — 


“,... faithful found; 
Among the faithless, faithful only he ; 
Among innumerable false, unmoved, 
Nor number, nor example, with him wrought, 
To swerve trom truth, or change his constant mind, 
Though single.” — Granger. 


LIFE OF CHIEF JUSTICE HERBERT. 


having published a very severe commentary, Chief Justice 
Herbert published a pamphlet in his own vindication, —in 
which he produced what he called his authorities, and, in 
answer to the personal reflections upon himself, observed, — 


“T can truly say that I never heard of this action till it was 
actually brought. If it be a feigned action, the law is as well 
settled in a feigned action as in atrue. ‘There are feigned actions 
directed out of Chancery every day, and why may not the King 
direct such an action to be brought to satisfy himself whether he 
hath such a power? If there were indirect means used to obtain 
opinions, I stand upon my innocence, and challenge all the world 
to lay anything of that kind to my charge. My part was only to 
give my own opinion; and if I have drawn weak conclusions from 
what I find in our books, how can I be charged as a criminal? 
But I never gave a judgment with so many authorities to warrant 
it asin Sir Edward Hales’s case. If it was to keep my judge’s 
place, I then became the worst man in the world, only to keep 
that which most men know my friends found great difficulty in 
persuading me to accept.” * 

King James was delighted beyond measure with the 
judgment, and with the defence of it ; and, lauding himself for 
his sagacity in selecting such a Chief Justice, and taking 
personally to himself all the credit of the appointment, he 
passed such compliments and lavished such blandishments on 
Herbert, that Jeffreys was jealous, and reports were spread 
that the great seal would soon be transferred to a new 
Chancellor.t 

By way of preliminary to the restoration of Popery as the 
religion of the state, there soon came out a ‘“ Declaration of 


* Whatever we may think of Herbert and his doctrine respecting the dis- 
pensing power, they have both had warm admirers, Clarke describes him, in his 
Life of James II., as “*a man of eminent learning and known integrity, suf- 
ficient to free him without further proof from the censure of partiality;” and 
says that, ‘ for his further vindication, he published his reasons with some of the 
many citations and examples he might have brought from the law books, which 
put the matter so far beyond dispute, that all the erudition of his adversaries or 
malice of his detractors could never furnish them with the least colour of a 
reply.” — 2 Clarke’s James JT., p. 82. et seq. 

t+ Lord Clarendon, in a letter to the Earl of Rochester, dated Dublin Castle, 
June 3. 1686, says, “ A story had reached Dublin, that my Lord Chancellor is 
in very little credit ; that my Lord Ch. Justice Herbert had exposed him upon 
the bench by laying open his briberies and corruptions (as they are called) in 
the West, with which the King is extremely offended, insomuch that it is said he 
will not be long in his place.” — Corresp. of Clar, and Roch. p. 426. 


89 


CHAT 
XXII. 





A.D. 1686, 


Herbert in 
high favour 
and likely 
to be Chan- 
cellor, 


Herbert 
on the 
Western 
Circuit, 


Herbert 
offends the 
King by 


REIGN OF JAMES II. 


Indulgence,” by which all sects of Christians were to be al- 
lowed to profess their faith without being subject to any 
disability, forfeiture, or penalty; and Herbert, sincerely 
thinking this a lawful exercise of the royal prerogative, de- 
lighted the King more than ever, not only by pronouncing 
in favour of its legality, but by actually assisting in giving 
effect to it. ‘ Since the Church party could not be brought 
to comply with the design of the Court, applications were 
now made to the Dissenters; and all on a sudden the chureh- 
men were disgraced, and the dissenters were in high favour. 
Chief Justice Herbert went the Western Circuit after 
Jeffreys’s bloody one. And now all was grace and favour 
to them. Their former sufferings were much reflected on and 
pitied. Every thing was offered that could alleviate their 
sufferings. Their teachers were now encouraged to set up 
their conventicles again, which had been discontinued, or 
held very secretly, for four or five years, and intimations were 
given that the King would not have them or their meet- 
ings to be disturbed.” * 

Burnet, from whom we have this account, adds, “ Jeffreys 
was much sunk at Court, and Herbert was the most in favour. 
But now Jeffreys, to recommend himself, offered a bold and 
illegal advice.” | This was to revive the Court of High 
Commission, whereby the clergy who should oppose the 
introduction of Popery might be deprived of their livings 
and punished for their contumacy. The author of this 
scheme was for a time dearer than ever to his master t, — but 
before long there were again thoughts of removing hin, as 
the brutality of his conduct and his manners threw discredit 
on the Government; and Jeffreys himself, who was always 
alarmed by rivals, had once more serious dread of being sup- 
planted by Herbert. But, all of a sudden, Herbert was dis- 
eraced, and Jeffreys was firmly established ig power. 

This change was produced by a point of law, on which, 
strange to say! the Chief Justice of the King’s Bench, sup- 


OT) diane es 1 ib. 367. 870. 

+ “ The Court being established, Jeffreys was made perpetual president — 
sine quo non——to guard against the influence of Herbert, who was named a 
member of it.”— Jb 


LIFE OF CHIEF JUSTICE HERBERT. 


posed to be slavishly obsequious, gave an opinion most highly 
distasteful to the owner of the dispensing power. 

The plan was formed of ruling by a standing army. But, 
without a parliament, how was this army to be kept in a 
proper state of discipline? In time of war, or during a rebel- 
lion, troops in the field were subject to martial law, and they 
might be punished, by sentence of a court martial, for mutiny 
or desertion. But the country was now in a state of peace and 
profound tranquillity ; and the common law, which alone pre- 
vailed, knew no distinction between citizen and soldier; so 
that, if a life-cuardsman deserted, he could only be sued for 
breach of contract, and if he struck his officer he was 
only liable to an indictment or an action of battery. While 
the King’s military force consisted of a few regiments of 
household troops, with high pay, desertion was not to be 
apprehended, and military offences were sufficiently punished 
by dismission from the service. But James found it impos- 
sible to govern the numerous army which he had collected at 
Hounslow without the assistance of martial law, — and he 
contended that, without any act of parliament, he was at all 
times entitled, by virtue of his prerogative, to put martial 
law in force against military men, although it could only be 
putin force against civilians when war or rebellion was raging 
in the kingdom. 

The question first arose at the Old Bailey, before Sir John 
Holt, then Recorder of London, and he decided against the 
Crown, as might have been expected ; for, while avoiding keen 
partizanship in politics, he had been always Whiggishly in- 
clined. James thought he was quite secure by appealing to the 
ultra-Tory, Lord Chief Justice Herbert. To the utter amaze- 
ment of the King and the courtiers, this honourable, although 
shallow, magistrate declared that, without an act of parlia- 
ment, all laws were equally applicable to all his Majesty’s 
subjects, whether wearing red coats or grey. Being taunted 
with inconsistency in respect of his judgment in favour of the 
dispensing power, he took this distinction, “that a statute 
altering the common law might be suspended by the King, 
who is really the lawgiver, notwithstanding the form that 
he enacts, ‘ with the assent of the Lords Spiritual and Tem- 





91 


CHAR 
XXII. 


denying 
his power 
to enforce 
martial law 
in time of 
peace. 


92 


CHAP, 
XXII. 


A.D. 1687. 


Herbert re- 
fuses to 
sanction 
the execu- 
tion of a 
deserter 
unlawfully 
convicted. 
April 16. 


REIGN OF JAMES II. 


poral, and Commons;’ but that the common law cannot be 
altered by the King’s sole authority, and that the King can 
do nothing contrary to the common law, as that must be 
considered coeval with the monarchy.” 

James, with the infatuated obstinacy which was now driving 
him to destruction, set this opinion at defiance; and, en- 
couraged by Jeffreys, caused a soldier to be capitally prose- 
cuted, at the Reading assizes, for deserting his colours. ‘The 
judges presiding there resorted to some obsolete inapplicable 
act of parliament, and were weak enough to lay down the 
law in the manner suggested to them by the Chancellor, so 
that a conviction was obtained. To give greater solemnity 
and éclat to the execution, the Attorney General moved the 
Court of King’s Bench for an order that it might take place 
at Plymouth, in sight of the garrison from which the prisoner 
had run away. But Herbert peremptorily declared that the 
Court had no jurisdiction to make such an order, and prevailed 
on his brother Wythens to join with him in this opinion. 
Mr. Attorney took nothing by his motion, but the recreant 
Chief Justice and the recreant Puisne were both next 
morning dismissed from their offices, to make way for the 
most sordid wretches to be picked up in Westminster Hall — 
Sir Robert Wright, and Sir Richard Allibone, a professed 
papist.* Burnet, who has since been generally followed, 
represents that these removals took place on the eve of 
the trial of the Seven Bishops, and with a view to their con- 
viction; but, in truth, the Second Declaration of Indulgence, 
out of which this celebrated prosecution arose, was not issued 
till a twelvemonth afterwards, and no human being had then 
imagined that the venerable fathers of the Anglican Church 
were to be arraigned at the bar of a criminal court for de- 
fending their religion in accordance both with human and 
divine laws.t 

In consideration of Herbert’s past services, in enabling 


* Rex vy. William Beal, 3 Mod. 124, We shall find that they unserupulously 
made the order. ‘ Even previous to these removes and changes, the Court was 
gratified, and the people shocked, with the execution of two deserters, one of 
whom was hanged in Covent Garden, and the other on Tower Hill.” — 
1 Ralph. 961. 

+ Burnet’s Own Times, ii. 466. 


LIFE OF CHIEF JUSTICE HERBERT. 


the King to appoint the members of his own religion to all 
civil offices under colour of judicial decision, — instead of being 
at once reduced to the ranks he was transferred to the office 
of Chief Justice of the Common Pleas, where it was thought 
he could do little harm. 

His notions of loyalty prevented him from making any 
complaint of an act done in the exercise of an undoubted 
prerogative of the Crown, and he quietly submitted to his 
fate. Jeffreys took care that he should be cut off from the 
chance of returning favour by having him forbidden to come 
to Whitehall; and, as he was confined to the obscure duties 
of his office in considering dry questions of real property 
law, we read little more respecting him during the remainder 
of this reign. 

Being sadly deficient in professional knowledge, and his 
puisnies, Street, Jenner, and Jutwyche, being almost equally 
incompetent, the decisions of the Common Pleas while he 
presided there are not reported ; and we are not even amused 
by his blunders, which are said to have been many and 
grievous. He still supported the Government in as far as he 
thought he honestly could, and, in the summer circuit of 
1688, “he declared the intention of the King to call a par- 
liament in November at the farthest, recommending the 
choice of such members as would comply with the King’s 
wishes in repealing the penal laws and tests.” * 

At the investigation instituted, when too late, to contradict 
the story that James’s son (afterwards known by the name 
of the Old Pretender) was a supposititious child, brought 
into the Queen’s bedchamber in a warming-pan, Herbert 
attended as a privy councillor, and was of considerable service 
in conducting the examinations, which might have convinced 
all reasonable persons of the genuineness of the birth.t 

The most honourable part of his career remains to be de- 
scribed. At the Revolution he did not, like Marlborough 
and others who had been loaded with Court favours, turn 
against his old- master; nor did he, like some of James’s 
councillors, who had remained true to him till he fled, attempt 


* Rutt’s Life of Calamy, i. 335. n. f 12 St. Tr.123, 


93 


CHAP. 
XXII. 


A.D. 1687, 
1688. 
Herbert is 
dismissed 
from the 
office of 
Chief Jus- 
tice of the 
King’s 
Bench, and 
made Chief 
Justice of 
the Com- 
mon Pleas. 


At the Re- 
volution, 
Herbert 
adheres to 
King 
James, 


94 


CHAP. 
XXII. 


A.D. 1689. 


He is made 
Lord Chan- 
cellor by 
King 
James in 
exile. 


A.v. 1698. 


He is ex- 
cepted 
from the 
Act of In- 
demnity. 


Testimo- 
nies to his 
private 
worth, 


REIGN OF JAMES II. 


to make peace with the new Government. Forgetting the 
harsh usage which he had experienced, and conscientiously 
believing in the divine right of kings, he renounced his 
country, and followed into exile him whom he still considered 
his legitimate sovereign, —although his own brothers were 
William’s staunchest supporters, and could easily have ob- 
tained his pardon on his making any concession to the new 
Government. 

After the battle of the Boyne, when James finally settled 
at St. Germaine’s, and formed his mock ministry there, he 
got a new great seal fabricated by an engraver at Paris. This 
he delivered to Sir Edward Herbert, with the title of ** Lord 
Chancellor of England ;” and the first use made of it was to 
affix it to a patent creating him Lord Portland, Baron Port- 
land of Portland in the county of Dorset. He, no doubt, 
hoped to return, a second Clarendon, to enjoy in his native 
land the office granted to him while a banished man: but he 
was destined, like his own father, to be never more than a 
titular Chancellor, and to end his days in exile. Forty-one 
years after the death of his father, at Paris, he died there, 
and was interred in the same cemetery. 

As he had so openly taken part with the Jacobites, he was 
expressly excepted from the Act of Indemnity passed by King 
William and Queen Mary; but this step was taken with re- 
luctance, and, in the debates which led to it, strong testimony 
was borne to his good qualities : — 

Mr. Hawles : “ If Iwould consult my affection, this is a gentle- 
man I would have pardoned. I know him an honest gentleman. 
If I would plead for any of them, it should be for him. But since 
the penalty of death is passed over, yet I would have a punish- 
ment, though a mild one, and except him.” Sir Robert Cotton: 
“Herbert did not come up to other judges, and order soldiers to be 
hanged for deserting their colours in time of peace.” Mr. Kendal : 
“ Thope you will consider Lord Chief Justice Herbert for the sake 
of a noble person, his brother, who lately had your thanks for good 
services in the cause of our liberties.” Mr. Holt: “I had my 
education in Winchester College with Lord Chief Justice Her- 
bert. Ihave discoursed this point of dispensation with him, and 
I can say it was his own true opinion; for he aimed at nothing of 
preferment, and he went not so far as King James would have 


LIFE OF CHIEF JUSTICE WRIGHT. 


had him.” However, it was resolved without a division, “ that 
Sir Edward Herbert be excepted out of the bill of indemnity, in 
respect of his having illegally decided that the King could dis- 
pense with the statutes of the realm.” * 

He left no issue, and his title of Portland was given to 
the branch of the illustrious family of Bentinck settled in 
England. It is a curious fact that he, the youngest of the 
family, alone adhered to the Cavalier principles of old Sir 
Edward; for the eldest brother, who rose to be a Geueral in 
the army, fell fighting for King William in the battle of 
Aghrim,—while Arthur, the other brother, the famous Admiral 
Herbert, (subsequently Earl of Torrington,) after having 
resolutely opposed the suspension of the Test Act, favoured 
the landing of the Prince of Orange, and was greatly instru- 
mental in accomplishing the Revolution.+ 





I now come to the last of the profligate Chief Justices of 
England, for since the Revolution they have all been men of 
decent character, and most of them have adorned the seat of 
justice by their talents and acquirements as well as by their 
virtues. Srr Ropert Wriaut, if excelled by some of his 
predecessors in bold crimes, yields to none in ignorance of his 
profession, and beats them all in the fraudulent and sordid 
vices. 

He was the son of a respectable gentleman who lived near 
Thetford, in Suffolk, and was the representative of an ancient 
family long seated at Kelverstone, in Norfolk}; he enjoyed 
the opportunity of receiving a good education at Thetford 
Free Grammar School, and at the University of Cam- 
brdge; and he had the advantage of a very handsome person 
and agreeable manner. But he was by nature volatile, 
obtuse, intensely selfish,—with hardly a particle of shame, 
and quite destitute of the faculty of distinguishing what was 
base from what was honourable. Without any maternal 
spoiling, or the contamination of bad company, he showed the 
worst faults of childhood, and these ripened, while he was 


* 5 Parl. Hist. 336. 
+ Burnet, ii. 365. 491. 510—527. ; Wood's Fasti, “ Chief Justice Herbert.” 
+ MS. in Coll. Armor., furnished to me by my friend Mr. Pulmaa. 


95 


CHAP. 
XXIT. 


His bru- 
thers 
Whigs. 


Eminence 
of Sir Ro- 
bert 
Wright 
among bad 
Judges. 


His origin, 


His idle- 
ness and ' 
depravity. 


96 


CHAP. 
XXII. 


He fails in 
the profes- 
sion of the 
law. 


Fraud and 
perjury of 
which he 

was guilty. 


LIFE OF CHIEF JUSTICE WRIGHT. 


still in early youth, into habits of gaming, drinking, and every 
sort of debauchery. There was a hope of his reformation 
when, being still under age, he captivated the affections of 
one of the daughters of Dr. Wren, Bishop of Ely, and was 
married to her. But he continued his licentious course of 
life, and, having wasted her fortune, he treated her with 
cruelty. 

He was supposed to study the law at an Inn of Court, but 
when he was called to the bar he had not imbibed even the 
first rudiments of his profession. Nevertheless, taking to the 
Norfolk Circuit, the extensive influence of his father-in- 
law, which was exercised unscrupulously in his favour, got 
him briefs, and for several years he had more business than 
North (afterwards Lord Keeper Guilford), a very industrious 
lawyer, who joined the circuit at the same time. “ But 
withal,” says Roger, the inimitable biographer, “he was so 
poor a lawyer that he could not give an opinion upon a written 
case, but used to bring such cases as came to him to his friend 
Mr. North, and he wrote the opinion on a paper, and the 
lawyer copied it and signed under the case as if it had been 
his own. It run so low with him, that when North was at 
London he sent up his cases to him and had opinions returned 
by the post ; and inthe mean time he put off his clients upon 
pretence of taking more serious consideration.” * 

At last the attorneys found him out so completely that 
they entirely deserted him, and he was obliged to give up prac- 
tice. By family interest he obtained the lucrative sinecure of 
“Treasurer to the Chest at Chatham,” but by his voluptuousand 
reckless course of life he got deeper and deeper in debt, and he 
mortgaged his estate to Mr. North for 15002, the full amount 
of its value. From some inadvertence the title-deeds were 
allowed to remain in Wright’s hands, and, being immediately 
again in want, he applied to Sir Walter Plummer to lend him 
5002. on mortgage, offering the mortgaged estate as a security, 
and asserting that this would be the first charge upon it. 
The wary Sir Walter thought he would make himself doubly 
safe by requiring an affidavit that the estate was clear from 
all incumbrances. This affidavit Wright swore without any 

* Life of Guilford, ii. 173. 


LIFE OF CHIEF JUSTICE WRIGHT. 


hesitation, and he then received the 5001. But the money 
being spent, and the fraud being detected, he was in the 
greatest danger of being sent to gaol for debt, and also of 
being indicted for swindling and perjury. 

He had only one resource, and this proved available. 
Being a clever mimic, he had been introduced into the circle 
of parasites and buffoons who surrounded Jeffreys, at this 
time Chief Justice of the King’s Bench, and used to make 
sport for him and his companions in their drunken orgies by 
taking off the other judges, as well as the most eminent 
counsel, One day, being asked why he seemed to be melan- 
choly, he took the opportunity of laying open his destitute 
condition to his patron, who said to him, “* As you seem to 
be unfit for the bar, or any other honest calling, I see nothing 
for it but that you should become a judge yourself.” Wright 
naturally supposed that this was a piece of wicked pleasantry, 
and, when Jeffreys had declared that he was never more 
serious in his life, asked how it could be brought about, for 
he not only felt himself incompetent for such an office, but he 
had no interest, and, still more, it so happened, unfortunately, 
that the Lord Keeper Guilford, who made the judges, was 
fully aware of the unaccountable lapse of memory into which 
he had fallen when he swore the affidavit for Sir Walter 
Plummer, that his estate was clear from all encumbrances, 
the Lord Keeper himself being the first mortgagee. Jeffreys, 
C. J.: “ Never despair, my boy; leave all that to me.” 

We know nothing more of the intrigue with certainty, 
till the following dialogue took place in the royal closet. 
We can only conjecture that in the meanwhile Jeffreys, who 
was then much cherished at Court, and. was impatient to 
supersede Guilford entirely, had urgently pressed the King 
that Wright might be elevated to the bench as a devoted 
friend of the prerogative, and that, as the Lord Keeper had a 
prejudice against him, his Majesty ought to take the appoint- 
ment into his own hands. But we certainly know that, a 
vacancy occurring in the Court of Exchequer, the Lord 
Keeper had an audience of his Majesty to take his pleasure 
on the appointment of a new Baron, —and that he named a 
gentleman at the bar, in great practice and of good character, 

VOL, II. H 


97 


CHAP. 
XXII. 


A.D. 1684, 


He is 
patronised 
by Jef- 
freys, 


How he 
was made 
a judge, 


98 


CHAP. 
XXII. 


A.D. 1684, 


LIFE OF CHIEF JUSTICE WRIGHT. 


as the fittest person to be appointed, thinking that Charles 
would nod assent with his usual easy indifference, — when, 
to his utter amazement, he was thus interrogated: “* My 
Lord, what think you of Mr. Wright? Why may not he 
be the man?” Lord Keeper: “ Because, Sir, I know him 
too well, and he is the most unfit person in England to be 
made a judge.” King: “Then it must not be.” Upon this 
the Lord Keeper withdrew, without having received any other 
notification of the King’s pleasure; and the office remained 
vacant. ; 

Again there is a chasm in the intrigue, and we are driven 
to guess that Jeffreys had renewed his solicitation, — had 
treated the objections started to Wright as ridiculous, — and 
had advised the cashiering of the Lord Keeper if he should 
prove obstinate. The next time that the Lord Keeper was in 
the royal presence, the King, opening the subject of his own 
accord, observed, ‘Good my Lord, why may not Wright be a 
judge? He is strongly recommended to me; but I would 
have a due respect paid to you, and I would not make him 
without your concurrence. Is it impossible, my Lord?” 
Lord Keeper: “ Sir, the making of a judge is your Majesty’s 
choice, and not my pleasure. Iam bound to put the seal as 
I am commanded, whatever the person may be. It is for 
your Majesty to determine, and me, your servant, to obey. 
But I must do my duty by informing your Majesty of the 
truth respecting this man, whom I personally know to be a 
dunce, and nolawyer; who is not worth a groat, having spent 
his estate by debauched living; who is without honesty, 
having been guilty of wilful perjury to gain the borrowing 
of asum of money. And now, Sir, I have done my duty to 
your Majesty, and am ready to obey your Majesty’s com- 
mands in case it be your pleasure that this man be a judge.” 
The King thanked the Lord Keeper without saying more, 
but next day there came a warrant under the sign manual for 
creating the King’s “ trusty and well-beloved Robert Wright” 
a Baron of his Exchequer, and orders were given for making 
out the patent in due form. 

Meanwhile, Jeffreys gave an instance of that grotesque 
buffoonery with which he loved to intermix his most atrocious 


LIFE OF CHIEF JUSTICE WRIGHT. 


actions. He wished to proclaim to the world, as a proof of 
his ascendancy, that he had promoted Wright to be a judge 
in spite of the Lord Keeper. ‘Therefore, while the Lord 
Keeper was sitting on the bench, Jeffreys, arrayed in his 
costume as Chief Justice, entered Westminster Hall, and in 
the midst of a vast crowd of barristers and strangers walked 
up towards the Court of Chancery, which was then open 
to the hall: “he then beckoned to Wright to come to him, 
and, whispering in his ear, he flung him off, holding out his 
arms towards the Lord Keeper, as much as to say, ‘in spite 
of that man above there, thou shalt be a judge.” His 
Lordship “saw all this, as it was intended he should, and 
it caused him some melancholy.” * But, rather than give up 
the great seal, his Lordship affixed it to Wright’s patent ; and 
the detected swindler, knighted and clothed in ermine, took 
his place among the twelve judges of England. 

** Some may allege that I bring forward circumstances too 
minute; but I fancy myself a picture-drawer, and I am to 
give the same image to a spectator as I have of the thing 
itself, which I desire should be here represented. History 
is, as it were, the portrait or lineament, and not the bare 
index or catalogue, of things done; and without the why and 
the how, all history is jejune and unprofitable.” f Therefore 
I should like to explain the motive of Jeffreys for such an 
appointment. He could not possibly have received a bribe 
for it, Wright not having a shilling in the world to give him ; 
and it did not lead to the shedding of blood, whereby a 
natural taste of his might be gratified;—but he perhaps wished 
to have upon the bench a man whom he considered more 
obnoxious to censure than himself; or he might simply look to 
the gratification of his vanity, by showing his influence to be so 
great that, in spite of the Lord Keeper, he could elevate to be 
a Baron of the Exchequer a man whom no one else would have 
proposed for a higher office in the law than that of a bound- 
bailiff.t People were exceedingly shocked when they saw 


* Life of Guilford, ii. 175, 176. Py Ibe hTs. 
+ J have heard it repeated as a saying of a departed statesman, who long ruled 
over Scotland, that “a minister gains much more by appointing a worthless than 


A 2 


99 


CHAP. 
».@.9 8 F 


A.D. 1684. 
Scene in 
Westmin- 
ster Hall 
between 
the Lord 
Chief Jus- 
tice of the 
King’s 
Bench and 
the. Lord 
Chancellor. 


100 


CHAP. 
XXII. 








AD. 1685.. 
Wright 
promceted 
from being 
a Baron of 
the Exche- 
quer to be 
a Justice of 
the King’s 
Bench. 
Oct. 11. 


He is made 
Chief Jus- 
tice of the 
King’s 
Bench, 


April 21, 
1687. 


REIGN OF JAMES II. 


the seat of justice so disgraced; but this might be what he 
intended ; and one of his first acts, when he himself obtained 
the great seal, was to promote his protégé from being a Baron 
of the Exchequer to be a Judge of the Court of King’s 
Bench. 

Wright continued to do many things which caused great 

scandal, and, therefore, was dearer than ever to his patron, 
who would have discarded him if he had shown any symp- 
toms of reformation. He accompanied General Jeffreys as 
aide-de-camp in the famous “campaign in the West :”—in 
other words, he was joined in commission with him as a 
Judge in the “ bloody assize,” and, sitting on the bench with 
him at the trial of Lady Lisle and the others which fol- 
lowed, concurred in all his atrocities.* He came in for very 
little of the bribery, —Jeffreys, who claimed the lion’s share, 
tossing him by way of encouragement one solitary pardon, for 
which a small sum only was expected. 
_ But on the death of Sir Henry Beddingfield he was made 
Chief Justice of the Common Pleas; and very soon after- 
wards, the unexpected quarrel breaking out between Sir Ed- 
ward Herbert and the Government about martial law and the 
punishment of deserters, — the object being to find some one 
who by no possibility could go against the Government, or 
hesitate about doing any thing required of him however 
base or however bloody, Wright was selected as Chief 
Justice of the King’s Bench. Unluckily we have no ac- 
count of the speeches made at any of his judicial installa- 
tions, so that we do not know in what terms his learning 
and purity of conduct were praised, or what were the pro- 
mises which he gave of impartiality and of rigorous adherence 
to the laws of the realm. 

On the very day on which he took his seat on the bench 
he gave good earnest of his servile spirit. The Attorney 


a worthy man to a public cffice, for in the latter case only a few can hope for 
favour, whereas in the former the great mass of the population consider them- 
selves within reach of the government patronage, and in consequence are eager 
to support you,” 

_™ Granger’s expression is, “ He had his share in the Western massacre ” 
— (p. 311.). 


LIFE OF CHIEF JUSTICE WRIGHT. 


General renewed his motion for an order to execute at 
Plymouth the deserter who had been capitally convicted at 
Reading for deserting his colours.* The new Chief Justice, 
without entering into reasons, or explaining how he came to 
differ from the opinion so strongly expressed by his pre- 
decessor, merely said ‘‘ Be it so!” The puisnies now nodded 
assent, and the prisoner was illegally executed at Plymouth 
under the order so pronounced. f 

Confidence was entirely lost in the administration of justice 
in Westminster Hall, for all the three Common Law courts 
were at last filled by incompetent and corrupt Judges. Petti- 
fogging actions only were brought in them, and men settled 
their disputes by arbitration or by taking the opinion of 
counsel. The Reports during the whole reign of James II. 
hardly show a single question of importance settled by judi- 
cial decision. Thus, having no distinct means of appre- 
ciating Chief Justice Wright’s demerits as a Judge in private 
causes, we must at once follow him in his devious course as 
a political Judge. 

The first occasion on which, after his installation, he drew 
upon himself the eyes of the public was when he was sent 
down to Magdalene College, Oxford, for the purpose of 
turning it into a popish seminary. Upon a vacancy in the 
office of president, the fellows, in the exercise of their un- 
doubted right, had elected the celebrated Dr. Hough, who 
had been duly admitted into the office; and the preliminary 
step to be taken was to annul the election, for the purpose of 
making way for another candidate named by the King. 
There were associated with Wright, in this commission, Cart- 
wright, Bishop of Chester, who was ready to be reconciled 
to Rome in the hope of higher preferment, and Sir Thomas 
Jenner, a Baron of the Exchequer, a zealous follower in the 
footsteps of the Chief Justice of the King’s Bench. Nothing 
could equal the infamy of their object except the insolence 
of their behaviour in trying to accomplish it. They entered 
Oxford escorted by three troops of cavalry with drawn 


+ Rex vy. William Beal, 3 Mod. 124, 125. 
H 3 


* Ante, p. 92. 


101 


CHAP: 
XXII, 


A.D. 1687. 
He orders 
a deserter 
to be 
hanged, 
contrary to 
law. 


October. 


He acts as 
one of the 
visitors to 
introduce 
popery into 
Magdalene 
College, 
Oxford. 


102 


CHAP, 
XXIE 





A.D. 1687. 


REIGN OF JAMES II. 


swords, and, having taken their seats with great parade in the 
hall of the college, summoned the fellows to attend them. 
These reverend and gallant divines appeared, headed by their 
new president, who defended his rights with skill, temper, 
and resolution; steadily maintaining that, by the laws of 
England, he had a freehold in his office, and in the house and 
revenues annexed to it. Being asked whether he submitted 
to this royal visitation, he answered, — 

“My Lords, I do declare here, in the name of myself and the 
fellows, that we submit to the visitation as far as it is consistent 
with the laws of the land and the statutes of the college, and no 
further.” Wright, C. J.: “ You cannot imagine that we act con- 
trary to the laws of the land; and as to the statutes, the King has 


. dispensed with them. Do you think we come here to break the 


laws?” Hough: “It does not become me, my Lords, to say so; 
but I will be plain with your Lordships. I find that your com- 
mission gives you authority to alter the statutes. Now, I have 
sworn to uphold and obey them; I must admit no alteration of 
them, and by the grace of God never will.” He was asked whether 
one of the statutes of the Founder did not require mass to be said 
in the college chapel; but he answered, “ not only was it un- 
lawful, but it had been repealed by the act of parliament requiring 
the use of the Book of Common Prayer.” However, sentence 
was given, that the election of Hough was void, and that he be 
deprived of his office of president. Hough: “Ido hereby pro- 
test against all your proceedings, all you have done, or shall 
hereafter do, in prejudice of me and my right, and I appeal to my 
sovereign lord the King in his courts of justice.” “ Upon which 
(says a contemporary account), the strangers and young scholars 
in the hall gave a hum, which so much incensed their Lordships, 
that the Lord Chief Justice was not to be pacified, but, charging 
it upon the President, bound him in a bond of 1000/., and security 
to the like value, to make his appearance at the King’s Bench bar 
the 12th of November; and, taking occasion to pun upon the Pre- 
sident’s name, said to him, ‘Sir, you must not think to huff us.” 
He then ordered the door of the President’s house to be broken 
open by a blacksmith ; and a Fellow observing, “ I am informed 
that the proper officer to gain possession of a freehold is the 
sheriff with a posse comitatus,” Wright said “I pray who is the 
best lawyer, you or 1? Your Oxford law is no better than your 


LIFE OF CHIEF JUSTICE WRIGHT. 


Oxford divinity. If you have a mind to a posse comitatus, you 
may have one soon enough.” 

Having ejected Hough, issued a mandate for expelling all 
the contumacious Fellows, and ensured the expulsion of James 
from his throne, the Commissioners returned in triumph to 
London. * 


Wright was likewise a member of the Ecclesiastical Court 
of High Commission, of which Jeffreys was president, and 
he strenuously joined in all the judgments of that illegal and 
arbitrary tribunal, which, with a non obstante, had been 
revived in the very teeth of an existing act of parliament. 
He treated with ridicule the scruples of Sancroft, the Arch- 
bishop of Canterbury, and others who refused to sit upon it, 
and he urged the infliction of severe punishment on all who 
denied its jurisdiction. 

Although he was not a member of the Cabinet, he usually 
heard from the Chancellor the measures which had been 
resolved upon there, and he was ever a willing tool in 
carrying them into effect. 

When the clergy were insulted, and the whole country 
was thrown into a flame, by the fatal Order in Council for 
reading the “ Declaration of Indulgence” in all churches and 
chapels on two successive Sundays, he contrived an oppor- 
tunity of declaring from the bench his opinion that it was 
legal and obligatory. Hearing that the London clergy were 
almost unanimously resolved to disobey it, he sent a per- 
emptory command to the priest who officiated in the chapel 
of Serjeants’ Inn to read the Declaration with a loud voice ; 
and on the famous Sunday, the 20th of May, 1688, he 
attended in person, to give weight to the solemnity. How- 
ever, he was greatly disappointed and enraged to find the 
service concluded without any thing being uttered beyond 
what the rubric prescribes. He then indecently, in the 
hearing of the congregation, abused the priest as disloyal, 
seditious, and irreligious, for contemning the authority of 
the Head of the Church. The clerk ingeniously came forth 
to the rescue of his superior, and took all the blame upon 


* 12St. Tr, 1—114. 
H 4 


103 


CHAP. 
XXII. 


A.D. 1687, 


He sits as 
a member 
ofthe High 
Commis- 
sion Court. 


His acti- 
vity in 
forcing the 
clergy to 
read the 
Declara- 
tion of In- 
dulgence. 


104 


CHAP, 
XXII. 


A.D. 1688. 


Prosecu- 
of the 
Seven 
Bishops. 


June 8, 
Arraign- 
ment, 


REIGN OF JAMES If. 


himself by saying that “he had forgot to bring a copy,” 
and the Chief Justice, knowing that he had no remedy, was 
forced to content himself with this excuse.” 

The Seven Bishops being committed to the Tower, and 
prosecuted for a conspiracy to defame the King and to over- 
turn his authority, because they had presented a petition to 
him praying that they might not be forced to violate their 
consciences and to break the law, Wright, the lowest wretch 
that had ever appeared on the bench in England, was to 
preside at the most important state trial recorded in our 
annals. The reliance placed upon his abject subserviency 
no doubt operated strongly in betraying the Government 
into this insane project of treating as common malefactors 
the venerable fathers of the Protestant Church, now regarded 
by the whole nation with affectionate reverence. The con- 
sideration was entirely overlooked by the courtiers, that, from 
the notorious baseness of his character, his excessive zeal 
might be revolting to the jury, and might produce an ac- 
quittal. It is supposed that a discreet friend of the Go- 
vernment had given him a caution to bridle his impetuosity 
against the accused, as the surest way of succeeding against 
them; for, during the whole proceeding, he was less arro- 
gant than could have been expected, and it is much more 
probable that his forbearance arose from obedience to those 
whom he wished to please, than from any reverence for the 
sacred character of the defendants or any lurking respect for 
the interests of justice. 

They were twice placed at the bar before him; first when 
they were brought up by the Lieutenant of the Tower to be 
arraigned, and afterwards when a jury was impanneled for 
their .trial On the former occasion the questions were 
whether they were lawfully in custody, and were then bound 
to plead? The Chief Justice checked the opposing counsel 
with an air of impartiality, saying, “ Look you, gentlemen, 

* The two clergymen who were most applauded on this occasion were—the 
bold one, who, refusing to obey the royal mandate, took for his text, “Be it 
known unto thee, O King, that we will not serve thy gods, nor worship the golden 
image which thou hast set up ;” and the humorous one, who having said, My 
brethren, Iam obliged to read this Declaration, but you are not obliged to listen 


to it,” — waited till they were all gone, clerk and all, before the reading of the 
Declaration began. 


LIFE OF CHIEF JUSTICE WRIGHT. 


do not fall upon one another, but keep to the matter in 
hand.” And, before deciding for the Crown, he said, “I 
confess it is a case of great weight, and the persons con- 
cerned are of great honour and value. I would be as willing 
as anybody to testify my respects and regards to my Lords 
the Bishops, if I could see anything in their objections worth 
considering, For here is the question, whether the fact 
charged in the warrant of commitment be such a misdemeanor 
as is a breach of the peace? I cannot but think it is such a 
misdemeanor as would have required sureties of the peace, 
and if sureties were not given a commitment might follow.” 
He was guilty of gross injustice in refusing leave to put in a 
plea in abatement; but he thus mildly gave judgment : — 
*“ We have inquired whether we may reject a plea, and, 
truly, 1 am satisfied that we may if the plea is frivolous; 
and this plea containing no more than has been overruled 
already, my Lords the Bishops must now plead guilty or not 
guilty.” 

When the trial actually came on, he betrayed a partiality 
for which, in our times, a judge would be impeached; but, 
compared with himself, so decorous was he, that he was sup- 
posed to be overawed by the august audience in whose pre- 
sence he sat. It was observed that he often cast a side 
glance towards the thick rows of earls and barons, by whom 
he was watched, and who, in the next parliament, might be 
his judges. One bystander remarked that ‘he looked as if 
all the peers present had halters in their pockets.” 

The counsel for the Crown haying, in the first instance, 
failed to prove a publication of the supposed libel in the 
county of Middlesex, and only called upon the Court to 
suppose or presume it, the Chief Justice said—*“I cannot 
suppose it; I cannot presume anything. I will ask my 
brothers their opinion, but I must deal truly with you; I 
think there is not evidence against my Lords the Bishops. 
It would be a strange thing if we should go and presume 
that these Lords did it when there is no sort of evidence to 
prove that they did it. We must proceed according to forms 
and methods of law. People may think what they will of 
me, but I always declare my mind according to my conscience. 


105 


CHAP. 
XXII. 


AD, 1688. 


June 29, 
Trial, 


106 


CHAP. 
XXII. 


A.pd. 1688. 


Acquittal 
for want o 
evidence 
prevented 
by the in- 
discretion 
of one of 
the coun- 
sel. 


REIGN OF JAMES IL. 


He was actually directing the jury to acquit, and the verdict 
of not guilty would have been instantly pronounced, when 
Finch, one of the counsel for the Bishops, most indiscreetly 
said they had evidence on their side to produce. The young 
gentleman was pulled down by his leaders, who desired the 
Chief Justice to proceed. And now his Lordship showed the 
cloven foot, for he exclaimed, “ No, no, I will hear Mr. Finch. 
Go on: my Lords the Bishops shall not say of me that I 
would not hear their counsel. I have been already told of 
being counsel against them, and they shall never say I would 
not hear counsel for them. Such a learned man as Mr. Finch 
must have something material to offer. He shall not be 
refused to be heard by me, I assure you. Why don’t you 
go on, Mr. Finch?” 

At this critical moment it was announced that the Earl of 
Sunderland, the President of the Council, — who was present 
in the royal closet when the Bishops presented their petition 
to the King at Whitehall, — was at hand, and would prove a 
publication in Middlesex. The Chief Justice then said, with 
affected calmness, but with real exultation, “ Well! you see 
what comes of the interruption. I cannot help it; it is your 
own fault.” There being a pause while they waited for the 
arrival of the Earl of Sunderland, the Chief Justice, address- 
ing Sir Bartholomew Shower, one of the counsel for the 
Crown, whom he had stopped at an early stage of the trial, 
and against whom he had some private spite, he observed 
with great insolence, “ Sir Bartholomew, now we have time 
to hear your speech, if you will. Let us have it.” 

At last the witness arrived, and, proving clearly a publica- 
tion in Middlesex, the case was again launched, and, after 
hearing counsel on the merits, it was to be left to the de- 
termination of the jury. 

The Chief Justice, thinking to carry it all his own way, 
was terribly baffled, not only by the sympathy of the audience 
with the Bishops, which evidently made an impression on the 
jury, but by the unexpected honesty of one of his brother 
judges, Mr. Justice John Powell, who had been a quiet man, 
unconnected with politics, and, being a profound lawyer, had 
been appointed to keep the Court of King’s Bench from 


LIFE OF CHIEF JUSTICE WRIGHT. 


falling into universal contempt. Sir Robert Sawyer beginning 
to comment upon a part of the Declaration which the Bishops 
objected to, “that from henceforth the execution of all laws 
against nonconformity to the religion established, or the exer- 
cise of any other religion, should be suspended,” Wright, C. J., 
exclaimed, “ I must not suffer this ; they intend to dispute the 
King’s power of suspending laws.” Powell, J.: “ My Lord, 
they must, necessarily fall upon the point; for, if the King 
hath no such power (as clearly he hath not, in my judgment), 
the natural consequence will be that this Petition is no 
diminution of the King’s regal power, and so not seditious or 
libellous.” Wright, C. J.: “ Brother, I know you are full 
of that doctrine; but, however, my Lords the Bishops shall 
have no occasion to say that I deny to hear their counsel. 
Brother, you shall have your will for once; I will hear them: 
let them talk till they are weary.” Powell, J.: “I desire no 
ereater liberty to be granted them than what, in justice, the 
Court ought to grant; that is, to hear them in defence of 
their clients.” 

As the speeches for the defendants proceeded, aud were 
producing a great effect upon all who heard them, the Solicitor 
General made a very irregular remark, accompanied by a 
fictitious yawn— “ We shall be here till midnight.” The 
Chief Justice, instead of reprimanding him, chimed in with 
his impertinence, saying, “ They have no mind to have an end 
of the cause, for they have kept it up three hours longer than 
they need to have done.” Serjeant Pemberton: ‘“ My Lord, 
this case does require a great deal of patience.” Wright, C. J. : 
** It does so, brother, and the Court has had a great deal of 
patience; but we must not sit here only to hear speeches.” 
In trying to put down another counsel, who was making way 
with the jury, he observed, “ Ifyou say anything more, pray 
let me advise you one thing—don’t say the same thing over 
and over again; for, after so much time spent, it is irksome 
to all company, as well as to me.” 

When it came to the reply of Williams, the renegade 
Solicitor General, who in his day had been “a Whig and 
something more,” he laid down doctrines which called forth 


107 


CHAP, 
XXIT, 


A.D, 1688. 


Contest be- 
tween 
Chief Jus- 
tice Wright 
and Jus- 
tice Powell, 


Wright’s 
contest 
with Pem- 
berton. 


108 


CHAP. 
XXII. 


a.nd. 1688. 
Doctrines 
of a rene- 
gade Whig. 


REIGN OF JAMES II. 


the reprobation of Judge Powell, and even shocked the Chief 
Justice himself, for he denied that any petition could law- 

fully be presented to the King except by the Lords and 

Commons in parliament assembled. Powell, J.: “ This is 

strange doctrine. Shall not the subject have liberty to peti- 

tion the King but in parliament? If that be law, the subject 

is in a miserable case.” Wright, C. J.: © Brother, let him 

go on; we will hear him out, though I approve not of his 

position.” The unabashed Williams continued, “ The Lords 

may address the King in parliament, and the Commons may 

do it; but therefore that the Bishops may do it out of- 
parliament, does not follow. Il tell you what they should 

have done: if they were commanded to do anything against 

their consciences, they should have acquiesced till the meeting 

of the parliament.” (Here, says the Reporter, the people in 

court hissed.) Attorney General: ‘This is very fine in- 

deed! I hope the Court and the jury will take notice of 
this carriage.” Wright, C. J.: “Mr. Solicitor, I am of opi- 

nion that the Bishops might petition the King; but this is 

not the right way. If they may petition, yet they ought to 

have done it after another manner; for if they may, in this 

reflective way, petition the King, I am sure it will make the 

government very precarious.” Powell, J.: “ My. Solicitor, 

it would have been too late to stay for a parliament, for the 

act they conceived to be illegal was to be done forthwith ; 

and if they had petitioned and not shown the reason why 

they could not obey, it would have been looked upon as a 

piece of sullenness, and for that they would have been as 

much blamed on the other side.” 

The Chief Justice, to put on a semblance of impartiality, 
attempted to stop Sir Bartholomew Shower, who wished to 
follow in support of the prosecution, and, being a very absurd 
man, was likely to do more harm than good. Wright, C. J.: 
*‘T hope we shall have done by and by.” Sir B. S.: “If 
your Lordship don’t think fit, I can sit down.” Wright, C. J.: 
“No! no! Go on, Sir Bartholomew — you'll say I have 
spoiled a good speech.” Sir B. S.: “I have no good speech 
to make, my Lord; I have but a very few words to say.” 
Wright, C. J.: ‘ Well, go on, sir; go on.” 


LIFE OF CHIEF JUSTICE WRIGHT. 


In summing up to the jury, the Chief Justice said :— 


“ This is a case of very great concern to the King and the 
Government on the one side, and to my Lords the Bishops on the 
other. It is an information against his Grace my Lord of Canter- 
bury and the other six Noble Lords, for composing and publishing 
a seditious libel. At first we were all of opinion that there was 
no sufficient evidence of publication in the county of Middlesex, 
and I was going to have directed you to find my Lords the Bishops 
not guilty ; but it happened that, being interrupted in my direc- 
tion by an honest, worthy, learned gentleman, the King’s counsel 
took the advantage, and, informing the Court that they had further 
evidence, we waited till the Lord President came, who told us 
how the Petition was presented by the Right Reverend defend- 
ants_to the King at Whitehall. ‘Then .came their learned 
counsel and told us that my Lords the Bishops are guardians of 
the Church, and great peers of the realm, and were bound in con- 
science to act as they did. Various precedents have been vouched 
to show that the kings of England have not the power assumed 
by his present Majesty in issuing the Declaration and ordering it 
to be read; but concessions which kings sometimes make, for the 
good of the people, must not be made law ; for this is reserved in 
the King’s breast to do what he pleases in it at any time. The 
truth of it is, the dispensing power is out of the case, and I wiil 
not take upon me to give any opinion upon it now; for it is not 
before me, The only question for you is a question of fact, 
whether you are satisfied that this Petition was presented to the 
King at Whitehall. If you disbelieve the Lord President, you 
will at once acquit the defendants. Ifyou give credit to his tes- 
timony, the next consideration is, whether the Petition be a 
seditious libel, and this is a question of law on which I must direct 
you. Now, gentlemen, anything that shall disturb the govern- 
ment, or make mischief and a stir among the people, is certainly 
within the case ‘ De Libellis Famosis;’ and I must, in short, 
give you my opinion, I do take it to be alibel. But this being a 
point of law, if my brothers have anything to say to it, I suppose 
they will deliver their opinions.” 

Mr. Justice Holloway, though a devoted friend of the 
Government, had in his breast some feeling of shame, and 
observed, — 

. “Tf you are satisfied there was an ill intention of sedition or 
the like, you should find my Lords the Bishops guilty; but if 
they only delivered a petition to save themselves harmless, and to 


109 


CHAP. 
XXII, 





A.D. 1688, 
The Chief 
Justice 
sums up to 
the jury. 


Opinions of 
the 
Puisnies. 


Holloway. 


OD ee Ft a. Bg 1 er 


110 


CHAP: 
XXII. 


A.p. 1688. 


Powell. 


Allybone. 


REIGN OF JAMES II. 


free themselves from blame, by showing the reason of their dis- 
obedience to the King’s command, which they apprehend to be 
a grievance to them, I cannot think it a libel.” Wright, C.J.: 
* Look you, by the way, brother, I did not ask you to sum up the 
evidence (for that is not usual), but only to deliver your opinion 
whether it be a libel or no.” Powell, J.: “ Truly, I cannot see, 
for my part, anything of sedition or any other crime fixed upon 
these reverend fathers. For, gentlemen, to make it a libel, it 
must be false, it must be malicious, and it must tend to sedition. 
As to the falsehood, I see nothing that is offered by the King’s 
counsel, nor anything as to the malice; it was presented with all 
the humility and decency becoming subjects when they approach 
their prince. In the Petition they say, because they conceive the 
thing that was commanded them to be against the law of the land, 
therefore they do desire his Majesty that he would be pleased to 
forbear to insist upon it. If there be no such dispensing power, 
there can be no libel in the Petition which represented the Decla- 
ration founded on sucha pretended power to be illegal. Now, 
gentlemen, this is a dispensation with a witness; it amounts to an 
abrogation and utter repeal of all the laws; for I can see no dif- 
ference, nor know of any in law, between the King’s power to dis- 
pense with laws ecclesiastical, and his power to dispense with any 
other laws whatsoever. If this be once allowed of, there will need 
no parliament ; all the legislature will be in the King — which is a 
thing worth considering — and I leave the issue to God and your 
own consciences.” 

Allybone, however, on whom James mainly relied, foolishly 
forgetting the scandal which would necessarily arise from the 
Protestant prelates being condemned by a Popish judge for 
trying to save their Church from Popery, came up to the 
mark, and, in the sentiments he uttered, must have equalled 
all the expectations entertained of him by his master : — 

“ In-the first place,” said he, “no man can take upon him to 
write against the actual exercise of the Government, unless he 
have leave from the Government. If he does, he makes a libel, 
be what he writes true or false; if we once come to impeach the 
Government by way of argument, it is argument that makes go- 
vernment or no government. So I lay down, that the Govern- 
ment ought not to be impeached by argument, nor the exercise of 
the Government shaken by argument, Am I to be allowed to dis- 
credit the King’s ministers because I can manage a proposition, in 


' 


LIFE OF CHIEF JUSTICE WRIGHT. 


itself doubtful, with a better pen than another man? This I say 
is a libel. My next position is, that no private man can take upon 
him to write concerning the Government at all, for what has any 
private man to do with the Government? It is the business of 
the Government to manage matters relating to the Government ; 
it is the business of subjects to mind only their private affairs. 
If the Government does come to shake my particular interest, the 
law is open for me, and I may redress myself; but when I intrude 
myself into matters which do not concern my particular interest, 
I am a libeller. And, truly, the attack is the worse if under a 
specious pretence ; for, by that rule, every man that can put ona 
good vizard may be as mischievous as he will, so that whether it 
be in the form of a supplication, or an address, or a petition, let 
us call it by its true denomination, it is a libel.” He then ex- 
amined the precedents which had been cited, displaying the 
grossest ignorance of the history as well as constitution of the 
country; and, after he had been sadly exposed by Mr. Justice 
Powell, he thus concluded: “TI will not further debate the prero- 
gatives of the Crown, or the privileges of the subject; but I am 
clearly of opinion that these venerable Bishops did meddle with 
that which did not belong to them; they took upon themselves to 
contradict the actual exercise of the Government, which I think 
no particular persons may do.” 

The Chief Justice, without expressing any dissent, merely 
said, “Gentlemen of the jury, have you a mind to drink 
before you go?” So wine was sent for, and they had a glass 
apiece; after which they were marched off in custody of a 
bailiff, who was sworn not to let them have meat or drink, 
fire or candle, until they were agreed upon their verdict. 

All that night were they shut up, Mr. Arnold, the King’s 
brewer, standing out for a conviction till six next morning, 
when, being dreadfully exhausted, he was thus addressed by 
a brother juryman: “ Look at me; I am the largest and the 
strongest of the twelve, and, before I find such a petition as 
this a libel, here I will stay till I am no bigger than a tobacco- 
pipe.” 

The Court sat again at ten, when the verdict of Nor 
GUILTY was pronounced, and a shout of joy was raised which 
was soon reverberated from the remotest parts of the king- 
dom, One gentleman, a barrister of Gray’s Inn, was imme- 
diately taken into custody in court, by order of the Lord 


111 


CHAP, 
XXII. 


A.D. 1688, 


Delibera- 
tion of the 
jury. 


112 


CHAP. 
XXII. 


A.D. 1688, 


Jan. 9. 
Wright in 
danger of 
being dis- 
missed. 


Reason 
why he was 
not dis- 
missed. 


Nov. 5. 


Dee. 11. 


REIGN OF JAMES II. 


Chief Justice, who, with an extraordinary command of tem: 
per and countenance, said to him in a calm voice, “I am as 
glad as you can be that my Lords the Bishops are acquitted, 
but your manner of rejoicing here in court is indecent ; you 
might rejoice in your chamber or elsewhere, and not here. 
Have you any thing more to say to my Lords the Bishops, 
Mr, Attorney?” A. G.: “No, my Lord.” Wright, C.J.: 
“Then they may withdraw,” — and they walked off, sur- 
rounded by countless thousands, who eagerly knelt down to 
receive their blessing.* 

Justice Holloway was forthwith cashiered, as well as Justice 
Powell; and there were serious intentions that Chief Justice 
Wright should share their fate, as the King ascribed the 
unhappy result of the trial to his pusillanimity,—contrast- 
ing him with Jeffreys, who never had been known to miss 
his quarry. This esteemed functionary held the still 
more important office of Lord High Chancellor, and, com- 
pared with any other competitor, Wright, notwithstanding 
his occasional slight lapses into conscientiousness, appeared 
superior in servility to all who could be substituted for him.t 
Allybone was declared to be “the man to go through thick 
and thin;” but, unfortunately, he had made himself quite 
ridiculous in all men’s eyes by the palpable blunders he had 
recklessly fallen into during the late trial ; and he felt so keenly 
the disgrace he had brought on himself and his religion, that 
he took to his bed and died a few weeks afterwards. 

Thus, when William of Orange landed at Torbay, Wright 
still filled the office of Chief Justice of the King’s Bench. 
He continued to sit daily in court till the flight of King 
James,—when an interregnum ensued, during which all judicial 
business was suspended, although the public tranquillity was 


* 1 St. Tr. 183—523. 

+ It was supposed that he was jealous of Williams, the Solicitor General, who 
had been promised by James the highest offices of the law if he could convict 
the Bishops. This may account for a sarcasm he levelled at his rival during 
the trial. Williams, having accounted for a particular vote of the House of 
Commons in the reign of James II., when he himself was a member and sus- 
pected of bribery, said “ there was a lump of money in the case.” Wright, in 
referring to this, observed, ‘¢ Mr. Solicitor tells you the reason, ‘ there was a lump 
of money in the case;’ but I wonder, indeed, to hear it come from him.” 
Williams, understanding the insinuation, exclaimed, ‘‘ My Lord, I assure you 
I never gaye my yote for money in my life,” 


LIFE OF CHIEF JUSTICE WRIGHT. 


preserved, and the settlement of the nation was conducted by 
& provisional government.* After Jeffreys had tried to 
make his escape, disguised as a sailor, and was nearly torn 
to pieces by the mob, Wright concealed himself in the house 
of a friend, and, being less formidable and less obnoxious (for 
he was called the “jackall to the lion”), he remained some 
time unmolested ; but upon information, probably ill-founded, 
that he was conspiring with papists who wished to bring back 
the King, a warrant was granted against him by the Privy 
Council, on the vague charge of “ endeavouring to subvert the 
government.” Under this he was apprehended, and carried 
to the Tower of London; but, after he had been examined 
there by a committee of the House of Commons, it was thought 
that this custody was too honourable for him, and he was 
ordered to be transferred to Newgate. Here, from the per- 
turbation of mind which he suffered, he was seized with a fever, 
and he died miserably a few days after, being deafened by 
the cheers which were uttered when the Prince and Princess 
of Orange were declared King and Queen of England.t 

His pecuniary embarrassments had continued even after he 
became a Judge, and, still living extravagantly, his means 
were insufficient to supply him with common comforts in his 
last hours, or with a decent burial. His end holds out an 
awful lesson against early licentiousness and political profli- 
cacy. He was almost constantly fighting against privation 
and misery, and during the short time that he seemed in the 
enjoyment of splendour he was despised by all good men, and 
he must have been odious to himself. When he died, his 
body was thrown into a pit with common malefactors; his 
sufferings, when related, excited no compassion ; and his name 
was execrated as long as it was recollected. 

The Convention Parliament, not appeased by his ignomi- 
nous death, still wished to set a brand upon his memory. At 
first there was an intention of attainting him, as well as 
Jeffreys, who, about the same time, had come to a similar 

* Westminster Hall was closed during the whole of Hilary Term, 1689, and 
an act was afterwards passed for reviving actions and continuing process 
(1 W. & M. ¢. 4.). 


+ Some accounts say that he was dangerously ill of a fever at the time of his 
removal from the Tower, 


VOL. II. I 


113 


CHAP. 
XXII. 


A.D. 1688. 
Fate of 
Wright at 
the Revo- 
lution. 


He dies in 
Newgate. 


Feb. 1689. 


He is 
buried with 
felons. 


Proceed- 
ings against 
him in par- 
liament 
after his 
death, 


114 


CHAP. 
XXII. 


A.D. 1688, 


THE REVOLUTION. 


end. In the debate on the Indemnity Act, Sir Henry Capel 
said, — 

« Will you not except the bloody Judges, and those who were 
of opinion for the dispensing power?” Mr. Boscawen: “ Al- 
though the capital offenders are dead, I would have them attainted. 
Begin with Chancellor Jeffreys, reduce his estate to the same con- 
dition as when he began to offend, and let his posterity be made 
incapable to sit in the Lords’ House.” Mr. Hawles: “ If you ex- 
cept a man that is dead, you will find the Chancellor very little 
more guilty than those who supported the dispensing power. The 
dispensing power was the last grievance, and a bloody sacrifice to 
the Prince’s pleasure.” 

It was resolved first to specify the offences which should 
exclude from the benefit of the Act of Indemnity, and these 
were agreed upon: “1. Asserting, advising, and promoting 
the dispensing power and suspending of laws without con- 
sent of parliament. 2. The prosecution of the Seven Bishops. 
3. Sitting in the Court of High Commission.” — Powell, 
Atkyns, Holloway, and other Judges who had been dis- 
missed, were examined at the bar, and the part that Wright 
had taken in the illegal proceedings of the last reign was 
clearly established. Sir Robert Sawyer, then Attorney 
General, now a member of the House, likewise made some 
terrible disclosures (which led to his own expulsion) relating 
to the manner in which the King, the Chancellor, and the 
Chief Justice had combined to obtain the concurrence of 
the other Judges in illegal decisions. Finally, Sir Thomas 
Clarges alone stood up for Wright, saying, “If any fact he 
hath done amounts to felony or treason, make his estate for- 
feitable, and I am for it; but where there is no offence in 
law, I would not have him excepted; and as he has gone to 
another world, and left no estate behind him, let him rest in 
peace.” But Sir Thomas Littleton closed the debate by 
observing, in a very fierce tone, “We may not be able to 
touch his person or his property, but it would be an ill thing 
for such a man to stand in our chronicles with no mark upon 
him.” So it was resolved “ that Sir Robert Wright be 
excepted.” * 


* 5 Parl. Hist. 260. 263. 278. $08. 312. 318. 324. 334. 339.; stat. 2 W. & M. 
sess, 1, c. 10. ; Granger, 311. ; Macaulay, ii, 275. 


LIFE OF CHIEF JUSTICE WRIGHT. 


And surely we have reason to admire the good sense and 
moderation which characterised the proceedings of the Con- 
vention Parliament in this as well as in almost every other 
deliberation. We are shocked by reading, in the criminal 
annals of Scotland, of a skeleton being set up at the bar of a 
court of justice to receive sentence,—and the insult offered, 
on the restoration of Charles II., to the remains of Cromwell 
and Blake, was disgraceful to the English nation; but the 
simple expression of censure by the legislature of the country 
upon this deceased delinquent harmonises with our best 
feelings, and, without inflicting hardship on any individual, 
was calculated to make a salutary impression upon future 
judges. It is lucky for the memory of Wright that he had 
contemporaries such as Jeflreys and Scroggs, who considerably 
exceeded him in their atrocities. Had he run the same 
career in an age not more than ordinarily wicked, his name 
might have passed into a by-word, denoting all that is odious 
and detestable in a judge; whereas his misdeeds have long 
been little known, except to lawyers and antiquaries. 

It isa painful duty for me to draw them from their dread 
abode; but let me hope that, by exposing them in their 
deformity, I may be of some service to the public. Ever 
since the reaction which followed the passing of the Reform 
Bill, there has been a strong tendency to mitigate the errors 
and to lament the fate of James II. This has shown itself 
most alarmingly among the rising generation, and there 
seems reason to dread that we may soon be under legislators 
and ministers who, believing in the divine right of kings, 
will not only applaud, but act upon, the principles of arbi- 
trary government.* Some good may arise from showing in 
detail the practical results of such principles in the due ad- 
ministration of justice —the chief object, it has been said, 
for which man renounces his natural rights, and submits to 
the restraints of magisterial rule. 

I rejoice to think that I am now parting with the last of 
the monsters who, disguised as judges, shed innocent blood, 


* When, in the debating societies at Eton, Oxford, and Cambridge, the ques- 
tion has been put to the vote “ whether the Revolution of 1688 was justifiable,” 
it has generally been carried by an immense majority in the negative. , 


roQ 


115 


CHAP. 
XXII. 


Utility of 
exhibiting 
the abuses 
of govern- 
ment 
which led 
to the Re- 
volution, 


116 


CHAP. 
XXII. 


A.D. 1688. 


CHARACTER OF STUART CHIEF JUSTICES. 


and conspired with tyrants to overturn all the free institutions 
which have distinguished and blessed our country. For the 
purpose of showing the manner in which the laws had been 
perverted to the oppression of the subject, I may conclude 
with asking the reader to take a retrospective glance at the 
two last Stuart reigns, and to observe that during a period of 
only twenty-eight years there had been a series of not fewer 
than eleven Chief Justices of the Court of King’s Bench, 
most of whom had been selected for their supposed sub- 
serviency, and several of whom were cashiered because, not- 
withstanding their eager desire to comply with the wishes of 
the Government, judgments had been required of them which 
they could not give without infamy, but which were given 
by their more infamous substitutes. The other judicial seats 
had been equally prostituted, — insomuch that although, on 
the establishment of the constitutional government under 
William and Mary, there was no indisposition to continue 
in office any of the old Judges who were decently competent 
by acquirements and character, it was found necessary to 
make a complete sweep of all actually officiating in the Court 
of Chancery, in the Court of King’s Bench, in the Court of 
Common Pleas, and in the Court of Exchequer. Even of 
the Judges who had been dismissed as refractory, Sir Robert 
Atkyns and Mr. Justice John Powell alone could with 
propriety be reappointed. The others, condemned for inde- 
pendence by James II., would have been shunned, from the 
dread of contamination, by the pure and enlightened men 
subsequently appointed to adorn the seat of justice, which 
the least culpable of their predecessors, with unpardonable 
although with faltering and imperfect profligacy, had dis- 
graced.* 


* The reader may like to see a list of the Judges immediately before and 
after the Revolution ; — 


James II. Witriam anp Mary. 
Lord Chancellor. Lords Commissioners of the Great Seal. 
Lord Jeffreys. Sir John Maynard. 


Sir Anthony Keck. 
Sir William Rawlinson, 


Master of the Rolls, Master of the Rolls. 
Sir John Trevor. Henry Powle, Esq. 


JUDGES BEFORE AND AFTER THE REVOLUTION. 117 


James II, 


King’s Bench. 
Sir Robert Wright. 
Sir Thomas Powell. 
Sir Robert Baldock. 
Sir Thomas Stringer. 


Common Pleas, 
Sir Edward Herbert. 
Sir Thomas Street. 
Sir Thomas Jenner. 


Sir Edward Lutwyche. 


Exchequer. 


Sir Robert Atkyns. 
Sir Richard Heath. 
Sir Charles Ingleby. 
Sir John Rothram. 


WittiaMm Anp Mary. 


King’s Bench, 
Sir John Holt. 
Sir William Doiben. 
Sir William Gregory. 
Sir Giles Eyre. 


CHAP. 
XXII. 


A.D. 1688, 


Common Pieas. 
Sir Henry Pollexfen, 
Sir John Powell. * 
Sir Thomas Rokeby. 
Sir Peyton Ventris. 


Exchequer. 
Sir Robert Atkyns.* 
Sir Nicholas Letchmere. 
Sir Edward Neville. 
Sir John Turton. 


* Old Judges reappointed. 


118 


CHAP. 
XXIII. 


Services 
and cha- 
racter of 
Sir John 
Holt. 


LIFE OF CHIEF JUSTICE HOLT. 


CHAPTER XXIII. 


LIFE OF LORD CHIEF JUSTICE HOLT, FROM HIS BIRTH TILL THE 
COMMENCEMENT OF HIS CONTESTS WITH THE TWO HOUSES OF 
PARLIAMENT. 


THE unprincipled, ignorant, and incompetent Chief Justices 
of the King’s Bench, who have been exciting alternately the 
indignation and the disgust of the reader, were succeeded by 
a man of unsullied honour, of profound learning, and of the 
most enlightened understanding, who held the office for 
twenty-two years, —during the whole of which long period 
—often in circumstances of difficulty and embarrassment — 
he gave an example of every excellence which can be found 
in a perfect magistrate. To the happy choice of Sir JoHN 
HO yt as president in the principal common law court, and te 
his eminent judicial services, we may in no small degree 
ascribe the stability of the constitutional system introduced 
when hereditary right was disregarded, and the dynasty was 
changed. During the reigns of William and of Anne, 
factions were several times almost equally balanced, and 
many of the enormities of the banished race were forgotten ; 
but when men saw the impartiality and mildness with which 
Chief Justice Holt conducted the trial of Lord Preston, who 
was undoubtedly guilty of high treason, and the firmness 
with which, in the discharge of his duty, he alternately defied 
the power of either House of Parliament, they dreaded a 
counter-revolution, by which he would have been removed 
to make place for a Jeffreys, a Scroggs, or a Wright. 

Of all the Judges in our annals, Holt has gained the 
highest reputation, merely by the exercise of judicial functions. 
He was not a statesman like Clarendon, he was nota phi- 
losopher like Bacon, he was not an orator like Mansfield ; yet 
he fills nearly as great a space in the eye of posterity; and 
some enthusiastic lovers of jurisprudence regard him with 


LIFE OF CHIEF JUSTICE HOLT. 


higher veneration than any English Judge who preceded or 
has followed him. 

It would have been most interesting and instructive to 
trace the formation of such a character, but, unfortunately, 
little that is authentic is known of Holt till he appeared 
in public life; and for his early career we are obliged to 
resort to vague and improbable traditions. 

He was of a respectable gentleman’s family, seated in the 
county of Oxford.* His father tried, rather unsuccessfully, 
to eke out the income arising from a small patrimonial estate, 
by following the profession of the law, and rose to be a 
bencher of Gray’s Inn. In 1677 he became a Serjeant, but 
was known by mixing in factious intrigues rather than by 
pleading causes in Westminster Hall. Of the party who 
were first called “ Tories” he was one of the founders. 
Taking the Court side with much zeal, he was rewarded with 
knighthood, and became “ Sir Thomas.” Of course he was 
an “ abhorrer,” inveighing against the “ Petitioners ” as little 
better than traitors —in consequence of which he was taken 
into custody by order of the House of Commons. His cele- 
brated son had strongly taken the other side in politics — but 
was no doubt shocked at this stretch of authority, and may 
then have imbibed the dislike which he afterwards evinced of 
the abuse of parliamentary privilege. The old gentleman 
soon after died, and if he had been childless his name never 
more would have been heard of. 

But on the 30th of December, 1642, there had been born 
to him at Thame, in Oxfordshire, a son, the subject of this 
memoir, whom he lived to see rising into great eminence, and 
of whom he was justly proud, although he deplored his political 
degeneracy when he found him to be a Whig. 


* T have taken the following account of Ch. J. Holt’s family, and the dates of 
the different events in his early career, from a Life of him published in the year 
1763, with the motto from his epitaph — 


“ Libertatis, ac Legum Anglicarum 

Assertor, Vindex, Custos, 

Vigilis, Acer, et Intrepidus.” 
This, as a biography, is exceedingly meagre, but it seems very accurate, and it 
cites authorities, most of which I have investigated, but which I do not think it 
worth while to parade. See likewise an able Life of Holt in Welsby’s “ Emi- 
nent English Judges,” which has been of considerable service to me in pre- 
paring this memoir, 

14 


119 


CHAP. 
XXIII. 


His father, 


A.D. 1642. 
His birth. 


120 


CHAP. 
XXIII. 





At school, 


A.pv. 1658. 


His early 
excesses, 


He acts the 
part ofa 
wizard. 


LIFE OF CHIEF JUSTICE HOLT. 


All that we certainly know of young John’s boyish edu- 
cation is that he was seven or eight years at the Free School 
of the town of Abingdon, of which his father was Recorder. 
It is said, that during the whole of this time he was remarkable 
for being idle and mischievous —a statement which I entirely 
disbelieve. ‘The boy is the father of the man,” and though 
there may be a supervening habit of dissipation — which may 
be conquered — the devoted application to business, the un- 
wearied perseverance, and the uniform self-control which 
characterised Sir John Holt, could only have been the result 
of a submission to strict discipline in early youth. 

In his sixteenth year he was transferred to the University 
of Oxford, and entered a fellow commoner of Oriel College. 
Here he was guilty of great irregularities, although they 
have been probably much exaggerated, and might arise from 
his having been previously kept: under excessive restraint. 
His biographers represent him as copying Henry V. when 
the associate of Falstaff, and not only indulging in all 
sorts of licentious gratifications, but actually being in the 
habit of taking purses on the highway. They even relate 
that many years after, when he was going the circuit as 
Chief Justice, he recognised a man, convicted capitally before 
him, as one of his own accomplices in a robbery, and that, 
having visited him in gaol and inquired after the rest of 
the gang, he received this answer, “ Ah! my Lord, they are 
ul hanged but myself and your Lordship! ”* 

Another story of his juvenile extravagance is well told by 
my friend Mr. Welsby : — 

“ Having prolonged one of his unlicensed rambles round the 
country, in company with some associates as reckless as himself, 
until their purses were all utterly exhausted, it was determined, 


* Hanging was not formerly considered so very disgraceful and melancholy an 
occurrence as it isnow. When I first came to London I frequented the famous 
Ciper Cexiar in Maiden Lane, where I met Professor Porson, Matthew Raine, the 
Master of the Charter- House, and other men of celebrity. Among these was 
George Nichol, the King’s bookseller, who, in answer to some reflections on the 
society who sometimes came there, answered, with an air of conscious dignity, 
“IT have known the Cider Cellar these forty years, and during that time only 
two men have been hung out of it.” At this time the Cellar was repaired, and 
Porson suggested for it the motto which it still bears — 


“ Honos ERIT HUIC QUOQUE POMO,” 


LIFE OF CHIEF JUSTICE HOLT. 


after divers consultations how to proceed, that they should part 
company, and try to make their way singly, each by the exercise 
of his individual wits. Holt, pursuing his separate route, came to 
the little inn of a straggling village, and, putting the best face 
upon the matter, commended his horse to the attentions of the 
ostler, and boldly bespoke the best supper and bed the house af- 
forded. Strolling into the kitchen, he observed there the daughter 
of the landlady, a girl of about thirteen years of age, shivering 
with a fit of the ague; and on inquiring of her mother how long 
she had been ill, he was told nearly a year, and this in spite of all 
the assistance that could be had for her from physicians, at an ex- 
pense by which the poor widow declared she had been half ruined. 
Shaking his head with much gravity at the mention of the doctors, 
he bade her be under no further concern, for she might assure her- 
self her daughter should never have another fit: then scrawling a 
few Greek characters upon a scrap of parchment, and rolling it 
carefully up, he directed that it should be bound upon the girl’s 
wrist, and remain there till she was well. By good luck, or pos- 
sibly from the effect of imagination, the ague returned no more, at 
least during a week for which Holt remained their guest. At the 
end of that time, having demanded his bill with as much confidence 
as if his pockets were lined with jacobuses, the delighted ‘hostess, 
instead of asking for payment, bewailed her inability to pay him 
as she ought for the wonderful cure he had achieved, and her ill- 
fortune in not having lighted on him ten months sooner, which 
would have saved her an outlay of some forty pounds. Her guest 
condescended, after much entreaty, to set off against his week’s 
entertainment the valuable service he had rendered, and wended 
merrily on his way. The sequel of the story goes on to relate, 
that when presiding, some forty years afterwards, at the assizes of 
the same county, a wretched decrepid old woman was indicted 
before him for witchcraft, and charged with being in possession of 
a spell which gave her power to spread diseases among the cattle, 
or cure those that were diseased. ‘The Chief Justice desired that 
this formidable implement of sorcery might be handed up to him ; 
and there, enveloped in many folds of dirty linen, he found the 
identical piece of parchment with which he had himself played the 
wizard so many years before. The mystery was forthwith ex- 
pounded to the jury; it agreed with the story previously told by 
the prisoner ; the poor creature was instantly acquitted, and her 
guest’s long-standing debt amply discharged.” * 


* Lives of Eminent English Judges, p. 91. 


121 


CHAP. 
b.€).01 5) 


122 


CHAP. 
XXIII. 


Nov. 19. 


1652. 
He studies 
law at 
Gray’s Inn. 


A.D. 1660. 


‘LIFE OF CHIEF JUSTICE HOLT. 


He had been early destined to the profession of the law, 
having been entered on the books of Gray’s Inn when he 
was only ten years old. His father was then treasurer of 
that society, and entitled to admit a son without a fee. 
Before he had completed his first year’s residence at Oxford, 
such were his excesses, and such were the complaints which 
they called forth, that Sir Thomas thought the only chance 
of saving him from utter ruin was a change of scene, of 
company, and of pursuits. Accordingly he was brought to 
London, he was put under the care of a sober attorney, and 
he was required to keep his terms with a view to his being 
called to the bar. ‘The experiment had the most brilliant 
success. His reformation was at once complete; and, without 
taking any vow, like Sir Matthew Hale, against stage plays 
and drinking, or renouncing society to avoid temptation, he 
applied ardently to the study of the law, and his moral 
conduct was altogether irreproachable. 

Unfortunately we have no particular account of the 
manner in which he rendered himself so consummate a jurist. 
“ Moots” and “Readings” at the Inns of Court were going 
out of fashion; and the ponderous common-place book, by 
which every student was expected to make out for himself a 
Corpus Juris Anglicani, was, since the publication of ROLLE 
and other compilations, thought rather a waste of labour. 
I suspect that, after acquiring a knowledge of practice from 
his attorney-tutor, young Holt improved himself chiefly by the 
diligent perusal of well-selected law books, and by a frequent 
attendance in the courts at Westminster when important 
cases were to be argued. By an intuitive faculty not to be 
found in your mere black-letter lawyer, he could distinguish 
genuine law, applicable to real business, from antiquated 
rubbish, of no service but to show a familiarity with the 
Yrar-Booxs. He made himself master of all that is 
useful in our municipal code, and, from his reasoning in 
Coggs Vv. Barnard and in other cases, it is evident that he 
must have thoroughly imbued his mind with the principles 
of the Roman civil law. If he once took delight in classical 
studies, he now renounced them; and he never wandered into 
philosophy, or even cared much about the polite literature of 


" LIFE OF CHIEF JUSTICE HOLT. 


his own country. But he mixed occasionally in general 
society, and picked up much from conversation; so that he 
was well acquainted with the actual business of life, and had 
a keen insight into character. His mother-wit was equal to 
his clergy. 

Soon after he came of age he was called to the bar; a 
wonderful precocity in those days, when a training of seven 
or eight years, after taking a degree at a university, was 
generally considered necessary before putting on the long 
robe. His juvenile appearance seems to have been adverse 
to his success, as for some years he was still dependent on 
his father’s bounty for his subsistence. He sought for prac- 
tice in the Court of King’s Bench, and rode the Oxford 
Circuit, but long remained without clients. Being advised 
to try his luck in the Court of Chancery, he expressed an un- 
becoming contempt for our equitable system, which certainly 
was then in a very crude state, and he professed a determined 
resolution to make his fortune by the common law. 

He still read diligently, and took notes of all the remark- 
able cases which he heard argued. When he was at last 
found out, business poured in upon him very rapidly. He 
was noted for doing it not only with learning always suff- 
cient, but with remarkable good sense and handiness; so 
that he won verdicts in doubtful cases, and was noted for 
having “the ear of the court.” Yet he would not stoop, for 
victory, to any unbecoming art, and always maintained a 
character for straightforwardness and independence. His 
name frequently appears as counsel in routine cases in the 
King’s Bench Reports about the middle of the reign of 
Charles IT., and he was soon to gain distinction in political 
prosecutions which interested the whole nation. 

He always showed in domestic life much reverence, as 
well as affection, for his father; but on public affairs he 
thought for himself, and he decidedly preferred the “ country 
party.” He had regarded with horror the iniquities of the 
infamous CABAL, and he associated himself with those who 
were struggling for the principles of civil and religious 
liberty. He was tainted with the rage against Popery, from 
which no patriot was then free; but, although a sincere 


123 


CHAP. 
XXIII. 





Feb. 27. 
1663-4, 
He is 

called to 
the bar. 


His profes- 
sional pro- 
gress, 


He isa 
Whig. 


124 LIFE OF CHIEF JUSTICE HOLT. 


CHAP. member of the Church of England, he was for extending a 
XXHI- liberal toleration to all orthodox Dissenters. With these 
principles, and his professional eminence, he was sure to be 
of service to his country in the struggles that were then 
going forward between the contending parties in parliament 

and in the courts of law. 
ei 690) The first cause célébre in which he was engaged was the 
Heis coun- impeachment of the Earl of Danby. The King, dreading 


| for th : , : Sant 1 any 
a ope the disclosures which might be made in investigating the 


Joel charges against his prime minister, had granted him a 
t ° ° ° 

Apia pardon, to which with his own royal hand he had affixed 
Sade F the great seal; but the Commons, allowing that it was 
charge 


with being Within the power of the prerogative to remit the sentence 
concerned after it had been pronounced, denied that a pardon could be 
in the ; . 
Popish pleaded in bar of an impeachment. The Lords received the 
Ae plea, and assigned Mr. Holt as counsel for the defendant to 
argue its validity; the understood rule then being (as had 
been settled in the case of the Earl of Strafford) that upon 
an impeachment the defendant might have the assistance of 
counsel on any question of law, although not to argue the 
merits of the accusation. The Commons were now so un- 
reasonable as to pass a resolution ‘‘ That no commoner what- 
soever shall presume to maintain the validity of the pardon 
pleaded by the Earl of Danby, without the consent of this 
House first had; and that the persons so doing shall be 
accounted betrayers of the liberties of the Commons of Eng- 
land.”* Holt remained undismayed, and would manfully 
have done his duty at the peril of being seized by the Ser- 
jeant-at-arms and lodged in “ Little Ease.” But the King 
put an end for the present to the controversy between the 
two Houses by an abrupt dissolution of that Parliament 
which had sat seventeen years, which on its meeting was ready 
to make him an absolute sovereign, but which now seemed 
disposed to wrest the sceptre from his hand. + 
Holt was afterwards assigned by the Lords to be counsel 
for the Earl of Powis and Lord Bellasis, two of the five 
Popish peers capitally impeached on the charge of being 
concerned in the Popish Plot, which was converted into high 
* 11 St. Tr. 807. t 5 Parl. Hist, 1074. 


LIFE OF CHIEF JUSTICE HOLT. 


treason, the murder of the King being one of its supposed 
objects.“ However, the unhappy Lord Stafford was alone 
brought to trial, and his murder caused such a reaction in the 
public mind that the other intended victims were released 
when they seemed inevitably doomed to share his fate. 

By one of the professional accidents to which all men at 
the bar are liable, from not being at liberty to refuse a retainer, 
Holt was next associated with Sir George Jeffreys in prose- 
cuting a bookseller for publishing a pamphlet alleged to be 
libellous and seditious, because it attempted to discredit the 
testimony of the witnesses against those who had died as 
authors of the Popish Plot. There might have been a design 
to influence the jury by presenting before them as counsel, 
in support of a tale which was becoming unpopular, one who 


was known to have opposed it when few had had courage to 


express a doubt of its most improbable fictions. 

Mr. Holt had merely, as junior, to open the pleadings, and 
was followed by his leader, who delivered a glowing panegyric 
on Lord Chief Justice Scroggs, and denounced all who did 
not believe in the Popish Plot as traitors, regretting that the 
present defendant was only indicted for a misdemeanor, so 
that his punishment could not be carried beyond fine, im- 
prisonment, whipping, and pillory. This harangue caused 
such consternation that the defendant submitted to a verdict 
of GuILTY, although, on the part of the prosecution, they 
seem not to have been prepared to prove that he had published 
the obnoxious pamphlet. f 

In the next case in which we find Holt engaged, his duties 
as an advocate and his political propensities fully coincided : 
he was counsel for Lord Russell. But, in those days, a 
barrister had little opportunity for a display of talent or zeal 
in the defence of persons accused of high treason; for his 
mouth was closed, and, indeed, his capacity of advocate was 
not acknowledged by the Court, except when some question 
of law incidentally arose during the trial. During the im- 
panneling of the jury, exception was made to one of them, 
on behalf of the prisoner, for not having a freehold; and the 


* 7 St. Tr. 1242. 1260. t Rex v. Smith, 7 St. Tr. 931. 


125 


CHAP. 
XXIII. 


A.D. 1680. 
He acts as 
junior to 
Jeffreys in 
a prosecu- 
tion for 
libel, 


A.D. 1683. 
He is 
counsel for 
Lord Rus- 
sell. 


126 


CHAP. 
XXIII. 


As counsel 
at the bar 
he “goes 
the whole 
hog.” 


LIFE OF. CHIEF JUSTICE HOLT. 


question was raised “ whether it was required, either by the 
common law or statute, that, on trials for treason, jurymen 
should be freeholders?” This was very learnedly argued by 
Holt; but all his authorities and reasonings were overruled.* 
During the remainder of the trial he had to look on as a 
mere spectator, — while the illustrious prisoner, assisted only 
by an heroic woman, in vain struggled against the chicanery 
of the counsel for the Crown, and the browbeating of corrupt 
Judges. Holt’s own upright and merciful demeanour in the 
seat of justice may, in part, be ascribed to the horror which 
the closing scene of this sad tragedy was calculated to inspire. 

In civil cases, eager for victory, he seems not to have been 
very scrupulous as to the arguments he urged, but — according 
to the American phrase, now naturalised in Westminster 
Hall, —to have “gone the whole hog.” Thus, in the case of 
the Kast India Company v. Sandys, in which the question 
was, whether the King’s grant to the plaintiffs of an exclusive 
right to trade to all countries east of the Cape of Good Hope 
gave them a right of action against all who infringed their 
monopoly, he boldly argued that, although such a grant 
touching the Christian countries of Europe might be bad if 
not confirnied by Parliament, the King’s subjects had no right 
to hold intercourse of any kind with Infidels without the’ 
express authority of the Crown; citing Lord Coke’s doctrine 
that “ Infidels are perpetual enemies,” and the Book of Judges, 
which shows “how the children of Israel were perverted 
from the true religion by converse with the heathen nations 
round about, from whom they took wives and concubines.” ¢ 
On this occasion he laid himself open to the severe sarcasm 
of his opponent, Sir George Treby, who observed, “I did a 
little wonder to hear merchandising in the East Indies ob- 
jected against as an unlawful trade, and did not expect so 
much divinity in the argument: I must take leave to say 
that this notion of Christians not to have commerce with 
infidels is a conceit absurd, monkish, fantastical, and fanatical.” 
Jeffreys, however, was the judge, and he fully adopted the 





* The refusal of a challenge to the jurors for want of freehold was made one 
of the principal grounds for reversing the attainder. 9 St, Tr. 696. 
+ 10 St. Tr. 519.; Lives of the Chancellors, v. 585. 


LIFE OF CHIEF JUSTICE HOLT. 


arguinent that the King’s licence alone can legalise a trading 
with infidels ; adding sentiments which will make true pro- 
tectionists venerate his memory: “ This island supported its 
inhabitants in many ages without any foreign trade at all, 
having in it all things necessary for the life of man — Terra 
suis contenta bonis, non indiga mercis. And truly I think, 
if at this day East India commodities were absolutely pro- 
hibited, though some few traders might be mulcted of enor- 
mous gains, it would be for the general benefit of the inha- 
bitants of this realm.” So Holt had the triumph, and, I 
fear, was not ashamed of it; although, when he was himself on 
the bench, he would sooner have died than have pronounced 
such a judgment.* His most creditable appearance at the 
bar was in the case of the Earl of Macclesfield vy. Starkey, 
in which the question arose, “ whether an action for 
defamation could be maintained against a grand juryman 
for joining in a presentment at the assizes which charged the 
plaintiff and other gentlemen of the county of Chester as 
promoters of schism, disaffection, and infidelity, because they 
had signed an address to Whig members of parliament, com- 
mending the principles of that party?” Holt was for the 
defendant, and, in a most masterly manner, entered into the 
distinction between publications that are criminatory and 
malicious, and publications that are criminatory without 
being malicious; showing that no persons are to be sued for 
acting in the discharge of their duty with a view to the public 
good, although the character of individuals might thereby be 
prejudiced ; and laying down with wonderful force the grand 
principle on which the legislature in our time passed the act 
declaring that the two Houses of Parliament have the right 
to publish whatever they deem necessary for the information 
of the community without the danger of an action or indict- 
ment against their officers. He succeeded; less, probably, 
from the force of his argument, than from the fact that the 
defendant was a violent Tory, and that the presentment was 
highly agreeable to the Government. 
Although ever consistent and zealous in his Whig prin- 
ciples, Holt never associated himself with Shaftesbury, nor 
* 10 St. Tr. 371. + Ib. 1351. 


His argu- 
ment in 
Earl of 
Maccles- 
Jield v. 
Starkey. 


128 


CHAP. 
mee ETS 


Attempt to 
seduce him 
by James 
ine 


Feb. 1686, 
He is ap- 
pointed 
Recorder 
of London, 
made 
King’s Ser- 
jeant, and 
knighted. 


April 22. 


LIFE OF CHIEF JUSTICE HOLT. 


entered into the plots which exposed the leaders of the party 
to the penalties of treason; and, when James II. came to the 
throne, so moderate did he appear that an attempt was made 
to gain him over to the Court, and a hope was entertained 
that he might prove a useful tool in carrying on the scheme 
which had been deliberately concerted for the subversion of 
public liberty. 

By the famous Quo WaRrRANTO, the charters of London 
had been adjudged to be forfeited, and the appointment of 
all the city officers was in the Crown. Sir Thomas Jenner 
had accordingly been made Recorder by royal mandate, 
without the intervention of the aldermen or the common 
council; and when he was promoted to be a Baron of the 
Exchequer, the vacant Recordership was offered to Mr. Holt. 
Although not unaware of the motive by which the Govern- 
ment was actuated, he thought he was not at liberty to refuse 
a judicial office, and he accepted it, fully determined, in a 
resolute manner, to perform its duties. He actually seemed, 
for a short space, to be likely to become an associate of 
Jeffreys, for, having taken the degree of the coif*, he was 
immediately promoted to the high dignity of King’s Serjeant, 
and had the honour of knighthood conferred upon him. But 
he was soon called upon either to maintain his integrity and 
to sacrifice office, or really to be degraded to the level of the 
corrupt Judges who were ready to act according to the orders 
they received from the ministers of the Crown. 

James IT. hoped to subvert the religion of the country 
by the exercise of his dispensing power, and its liberties by 
keeping up a standing army in time of peace, without the 
authority of parliament. All his Judges in Westminster 
Hall, with the exception of Baron Street, had decided that, 
in spite of acts of parliament requiring the oath of supre- 
macy and the declaration against transubstantiation, he might 
appoint a Roman Catholic to any office, civil, military, or ec- 
clesiastical ; and all these perverters of the laws, except Chief 


* On this occasion he gave rings with this motto—-“ Deus, Rex, Lex,” 
which is noticed by Bishop Kennet as honourably distinguished from that of the 
last preceding batch of serjeants, —“ A Deo Rex, a Rege Lex,” setting the 
King above the Law. 


LIFE OF CHIEF JUSTICE HOLT. 


Justice Herbert and Justice Wythens, had given an opinion 
that an old statute of Edward III. against desertion in time 
of war empowered the King to keep up, and to rule by 
martial law, an army raised by his own authority, at a time 
when he had no foreign enemy and there was profound tran- 
quillity at home. Both these questions incidentally arose 
before Holt, sitting as Recorder at the Old Bailey sessions ; 
and he firmly declared, that although the dispensing power 
claimed by the Crown had been applied, from ancient times, 
to statutes imposing pecuniary penalties given to the King, it 
could not extend to a statute imposing a test to protect the 
religion of the nation; and that although the King by his pre- 
rogative might enlist soldiers, even in time of peace, still, if 
there was no statute passed to punish mutiny, and to subject 
them to a particular discipline, they could not be punished for 
any military offence, and they were only amenable to the 
same laws as the rest of the King’s subjects. The Recorder- 
ship of London being, under the existing régime, held during 
the pleasure of the Crown, Holt was immediately removed 
from it, and was replaced by an obscure Serjeant-at-law, of 
the name of Tate, who had the recommendation of being ready 
to hold that the King of England was as absolute as the 
Grand Signor. 

By arefinement of malice he was allowed to continue King’s 
Serjeant, for in the state prosecutions which were impending 
he was thus effectually prevented from acting as counsel for 
the accused, while it was unnecessary to employ him for the 
Crown. Accordingly, he was not trusted with a brief to 
assist in trying to convict the Seven Bishops ; and they, being 
deprived of his advocacy, which they would have been eager 
to secure, were obliged to employ several counsel who were 
suspected to be under the influence of the Government,—and 
might have been betrayed, if Mr. Somers, till then unknown, 
had not been added to their number.* 


* The Diary of the second Lord Clarendon shows that Holt, as King’s Ser- 
jeant, was obliged to refuse taking a brief for the plaintiff in a suit against the 
Queen Dowager Catherine of Braganza, although he was not employed for her. 
The noble diarist, not aware of professional etiquettes, seems to have been very 
angry; and declares that the only honest lawyers he ever met with were two 
“thurrough Tories ” like himself, Roger North and Sir Charles Porter. 


VOL. II, K 


129 


CHAP. 
XXIII. 





Jan. 1687. 
He refuses 
to abet the 
arbitrary 
measures 
of the 
King, and 
is dismissed 
from the 
office of 
Recorder. 


He is con- 
tinued in 
his office of 
King’s 
Serjeant. 


130 


CHAP. 
XXIII. 


A.D. 1688, 


Landing of 
the Prince 
of Orange. 


Dee. 11. 


He acts as 
assessor to 
the Peers. 


Jan. 22. 
1689. 


He is 
elected a 
member of 
the Con- 
vention 
Parlia- 
ment, 


LIFE OF CHIEF JUSTICE HOLT. 


But Holt was summoned, in his capacity of King’s Ser- 
jeant, to attend the Council assembled by the King, when it 
was too late, to investigate the circumstances of the birth 
of the Prince of Wales, and to expose the calumnious story 
that a supposititious child had been introduced into the Queen’s 
bed-chamber in a warming-pan. He assisted in examining 
the witnesses who proved so satisfactorily her pregnancy and 
her delivery, and in drawing up the declaration by which an 
ineffectual attempt was made to disabuse the public mind. 

I do not find that Holt joined in the invitation to the 
Prince of Orange, or that he took any active part in the revo- 
lutionary movement till after the flight of King James — 
when the throne, by all good Whigs, was considered vacant. 
He then declared that he was completely released from his 
allegiance to the abdicated monarch, and exerted himself to 
bring about a settlement which, disregarding hereditary right, 
should establish a constitutional monarchy, justly esteemed 
by him the best guarantee for true freedom. 

When the Peers first met and formed a provisional govern- 
ment, as they could have no confidence in the legal advice of 
the Judges, Holt, with several other liberal lawyers, attended 
them as their assessors, and concurred in the proceedings 
which terminated in the Prince of Orange summoning the 
Conyention Parliament.* 

He was not one of the members originally returned to the 
House of Commons on this occasion; and when the session 
began, as King’s Serjeants had been accustomed to have a 
summons to the House of Lords, he took his place on the 
woolsack, from which the Judges were banished, and guided 
their Lordships in the forms to be observed in reconstructing 
the constitution.; But it was thought that his presence in 
the Lower House might be more advantageous ; and Serjeant 
Maynard, who had been returned both for Plymouth and Beer- 
alston, having elected to serve for the former borough, Ser- 
jeant Holt was chosen by the latter,—which was represented 
for a great many years by such a succession of patriotic law- 
yers, that we might almost be reconciled to close boroughs if 
the scandal caused by them could be forgotten. 

* 5 Parl, Hist. 19, 21. 24. t+ Lords’ Journals, 5 Parl. Hist. 32. 


LIFE OF CHIEF JUSTICE HOLT. 


On taking his seat, he found the controversy raging be- 


tween the two Houses respecting the terms in which King 


James’s flight should be described ; the Commons having pro- 
posed the expression that “he had abdicated the throne,” and 
the Lords insisting on the word “deserted.” This was by 
no means a foolish fight about equipollent language, as it is 
generally described ; for “ abdication” was to lead to the ap- 
pointment of a new occupier of the vacant throne, and “ de- 
sertion” to the appointment of a regency to govern for the 
lineal heir. Holt was deemed a great acquisition by the 
* abdicationists,” and he was immediately added to the com- 
mittee of managers intrusted with the duty of debating the 
question in open conferences with the opposing managers of 
the Lords. His speech in the Painted Chamber (almost the 
only specimen of his parliamentary powers) is preserved to us. 
He followed immediately after Mr. Somers, who had treated 
the subjectly very learnedly, and thus he proceeded : — 

“* My Lords, I am commanded by the Commons to assist in the 
management of this conference. As to the first of your Lord- 
ships’ reasons for your amendment (with submission to your Lord- 
ships), Ido conceive it not sufficient to alter the minds of the 
Commons, or to induce them to change the word ‘abdicated’ for 
your Lordships’ word ‘ deserted.” Your Lordships first say that 
‘abdicate’ is a word not known to the common law of England. 
But, my Lords, the question is not so much whether it be a word 
as ancient as the common law, for the Commons would be justified 
in using it if it be a word of known and certain signification. It 
is derived from dico, an ancient Latin word, and it is frequently 

used by Cicero and the best Roman writers. But that it is a 
known English word, and of a known and certain signification 
with us, I will prove to you by the dictionary of our countryman 
Minshew. He has ‘abdicate,’ as an English word, and says that 
it signifies to ‘renounce,’ which is the signification which the 
Commons would put upon it. So that I hope your Lordships will 
not find fault with their using a word so ancient in itself, and with 
such a certain signification in the vernacular tongue. ‘Then, my 
Lords, your objection that it is not a word known to the common 
law of England, surely cannot prevail, for your Lordships very 
well know we have very few words in our tongue that are of 
equal antiquity with the common law ; your Lordships know the 


language of England is altered greatly in the succession of ages 
K 2 


131 


CHAP. 
XXIII. 





A.D. 1689, 
Conference 
between 
the two 
Houses on 
** abdica- 
tion ” and 
** deser- 
tion.” 


Holt’s 
speech as a 
manager 
for the 
Commons. 


132 


CHAT: 
XXII. 


A.D. 1689. 


Feb. 13. 


He takes 
the oaths 
to William 
and Mary. 


Feb. 25. 


REIGN OF WILLIAM AND MARY. 


and the intermixture of other nations; and if we were obliged to 
make use only of words current when the common law took its 
origin, what we should deliver in such a dialect would be very 
difficult to be understood. Then your Lordships tell us that 
‘abdication’ by the civil law is ‘a voluntary express act of re- 
nunciation.’ JI do not know if your Lordships mean a renun- 
ciation by formal deed. If you do, I confess I know of none 
executed by King James before he withdrew from the realm. 
But, my Lords, both by the civil law, and by the common law, 
and by common sense, there are express acts of renunciation which 
are not by deed; for, if your Lordships please to observe, govern- 
ment is under a trust, and a deliberate violation of that trust is an 
express renunciation of it, although not by formal deed. How can 
a man in reason or sense more strongly express a renunciation of 
a trust than by subverting it, his actions declaring more strongly 
than any words spoken or written could do that he utterly re- 
nounces it? ‘Therefore, my Lords, I can only repeat in conclusion, 
that the doing an act inconsistent with the being and end of a 
thing shall be construed a renunciation or abdication of that 
thing.” * 

The Lords, probably, were not much convinced by such 
reasoning ; but, finding public opinion strongly against them, 
and alarmed by William’s threat that, if a regency should be 
longer struggled for, he would return to Holland, they, 
yielded, — the throne was formally declared to be vacant, 
and a joint address of the two Houses was presented to the 
Prince and Princess of Orange, requesting them to take 
possession of it as King and Queen. 

‘ No sooner were they proclaimed than a patent was made 
out for Sir John Holt as their Prime Serjeant, and he took 
the oaths of allegiance to them. After the “Convention” had 
been turned into a “ Parliament,” he spoke only in one debate 
during the short time he remained a member of the House 
of Commons. This was on the difficult question, “ what 
was to become of the taxes which had been voted during the 
life of James II.?” Serjeant Holt contended that they were 
still payable, as James II., though he.had ceased to reign, 
was still alive, and that they passed with the Crown to King 
William and Queen Mary. He urged, with much subtlety, 


* 5 Parl. Hist. 70. 


LIFE OF CHIEF JUSTICE HOLT. 


that the grant had been made to the Crown of England dur- 
ing the life of an individual, and, therefore, while this indi- 
vidual survived, those wearing the crown were entitled to 
the benefit of it.* The more prudent course, however, was 
adopted of making a fresh grant of the taxes to the new 
sovereigns. 

Holt does not appear to have taken any part in framing the 
* Declaration of Rights” or the “ Bill of Rights.” I do not 
think that he ever would have been a great debater, or would 
have acquired much reputation as a statesman. The felicity 
of his lot proved to be, that he was placed in the situation of 
all others the best adapted to his natural abilities, to his ac- 
quirements, and to his character. 

William and his ministers were laudably anxious to ele- 
vate to the bench the most learned and upright men that 
could be found in the profession of the law, the corruption 
and incompetency of the Judges having been one of the 
chief grounds on which the nation had resolved upon a 
change of dynasty. Great deliberation was necessary for 
this purpose, and fortunately there was time to devote to 
it. Judicial business had been entirely suspended since the 
late King’s flight ; and during Hilary Term, which ended on 
the 12th of February, all the courts in Westminster Hall 
had been closed. After many consultations, —to avoid all 
favouritism, the following plan was adopted: that every 
privy councillor should bring a list of the twelve persons 
whom he deemed the fittest to be the twelve Judges; 
and that the individuals who had the greatest number of 
suffrages should be appointed. It is a curious fact, that, 
howsoever the lists of the different privy councillors varied, 
they all agreed in first presenting the name of Sir John Holt ; 
— such was his reputation for law, — such satisfaction had he 
given in dispensing justice when Recorder of London, — and 
in such respect was he held for his consistent career in public 
life. The King willingly ratified this choice, and when the 
appointment was announced in the London Gazette it was 
hailed with joy by the whole nation.+ The new Chief 


* 5 Parl. Hist. 140. 174. 
+ Own Times, iii. 6. At the same time he was elected a Governor of the 


Kk 3 


133 


CHAP. 
XXIII. 


A.D. 1689. 


He is ap- 
pointed 
Chief Jus- 
tice of the 
King’s 
Bench. 


134 


CHAP. 
XXIII. 





A.D. 1689, 


REIGN OF WILLIAM AND MARY. 


Justice was sworn in before the Commissioners of the Great 
Seal on the 19th of April, and took his seat in the Court 
of King’s Bench on the first day of Easter Term following.* 

According to the ancient traditions of Westminster Hall, 
the anticipation of high judicial qualities has been often dis- 
appointed. The celebrated advocate, when placed on the 
bench, embraces the side of the plaintiff or of the defendant 
with all his former zeal, and—unconscious of partiality or 
injustice—in his eagerness for victory becomes unfit fairly to 
appreciate conflicting evidence, arguments, and authorities. 
The man of a naturally morose or impatient temper, who had 
been restrained while at the bar by respect for the ermine, or 
by the dread of offending attorneys, or by the peril of being 
called to a personal account by his antagonist for imperti- 
nence, —when he is constituted a living oracle of the law,— 
puffed up by self-importance, and revenging himself for past 
subserviency, is insolent to his old competitors, bullies the 
witnesses, and tries to dictate to the jury. The sordid and 
selfish practitioner, who, while struggling to advance himself, 
was industrious and energetic, having gained the object 
of his ambition, proves listless and torpid, and is quite 
contented if he can shuffle through his work without com- 
mitting gross blunders or getting into scrapes. Another, 
having been more laborious than discriminating, when made 
a judge, hunts after small or irrelevant points, and obstructs 
the business of his court by a morbid desire to investigate 
fully and to decide conscientiously. The recalcitrant barrister, 
who constantly complained of the interruptions of the court, 
when raised to the bench forgets that it is his duty to listen 
and be instructed, and himself becomes a by-word for im- 
patience and loquacity. He who retains the high-minded- 
ness and noble aspirations which distinguished his early 
career may, with the best intentions, be led astray into dan- 
gerous courses, and may bring about a collision between different 
authorities in the state which had long moved harmoniously, 
by indiscreetly attempting new modes of redressing grievances, 
and by an uncalled-for display of heroism. 


Charter-House in the room of Lord Chancellor Jeffreys.—Corresp, of E. of 
Clar. ii. 276. 
* Fle was sworn a member of the Privy Council, August 25. 1689. 


LIFE OF CHIEF JUSTICE HOLT. 


None of these errors could be imputed to Holt. From his 
start as a magistrate he exceeded the high expectations which 
had been formed of him, and during the long period of twenty- 
two years he constantly rose in the admiration and esteem of 
his countrymen. ‘To unsullied integrity and lofty independ- 
ence, he added a rare combination of deep professional know- 
ledge with exquisite common sense. According to a homely 
but expressive phrase, “there was no rubbish in his mind.” 
Familiar with the practice of the court as any clerk, —ac- 
quainted with the rules of special pleading as if he had spent 
all his days and nights in drawing declarations and demurrers, 
— versed in the subtleties of the law of real property as if 
he had confined his attention to conveyancing, —and as a 
commercial lawyer much in advance of any of his con- 
temporaries, — he ever reasoned logically, — appearing at the 
same time instinctively acquainted with all the feelings of 
the human heart, and versed by experience in all the ways of 
mankind. He may be considered as having a genius for 
magistracy, as much as our Milton had for poetry, or our 
Wilkie for painting. Perhaps the excellence which he 
attained may be traced to the passion for justice by which he 
was constantly actuated. This induced him to sacrifice ease, 
and amusement, and literary relaxation, and the allurements 
of party, to submit to tasks the most dull, disagreeable, and 
revolting, and to devote all his energies to one object, — 
ever ready to exclaim — 





. . . * Welcome business, welcome strife, 
Welcome the cares of ermined life ; 
The visage wan, the purblind sight, 
The toil by day, the lamp by night, 
The tedious forms, the solemn prate, 
The pert dispute, the dull debate, 
The drowsy bench, the babbling hall,— 
For thee, fair Jusricr, welcome all!!!” 


Holt derived much advantage in his own time from the 
contrast between him and the Judges who had recently pre- 
ceded him. Accordingly, his contemporaries speak of him 
with enthusiasm. Burnet, after giving an account of the 
manner in which the Revolution Judges were selected, says, 
«The first of these was Sir John Holt, made Lord Chief 


Justice of England, then a young man for so high a post, who 
x 4 


135 


CHAP: 
XXIII. 


A.D. 1689. 
His merits 
as a Judge. 


136 


CHAP. 
XXIII. 


a.p. 1689 


—1710. 
He is 


praised by 


the Tatler, 


His re- 
porters. 


* 


REIGN OF WILLIAM AND MARY. 


maintained it all his time with a great reputation for capacity, 
integrity, courage, and dispatch.” * Said the TarLeEr, “ He 
was a man of profound knowledge of the laws of his 
country, and as just an observer of them in his own person. 
He considered justice as a cardinal virtue, not as a trade for 
maintenance. The criminal before him knew that, though his 
spirit was broken with guilt, and incapable of language to 
defend itself, his judge would wrest no law to destroy him, 
nor conceal any that would save him. He never spared vice ; 
at the same time he could see through the hypocrisy and 
disguise of those who have no pretence to virtue themselves 
but by their severity to the vicious.” t 

The lustre of his fame in later times has been somewhat 
dimmed by our being accustomed to behold judges little in- 
ferior to him; but we ought to remember that it is his ight 
which has given splendour to these luminaries of the law. 
During a century and a half, this country has been renowned 
above all others for the pure and enlightened administration 
of justice; and Holt is the model on which, in England, the 
judicial character has been formed. 

He complained bitterly of his reporters, saying that the 
skimblescamble stuff which they published “would “make 
posterity think ill of his understanding, and that of his 
brethren on the bench.” He chiefly referred to a collection 
of Reports called “ MopErn,” embracing nearly the whole of 
the time when he sat on the bench, — which are composed in 
a very loose and perfunctory manner. More justice is done 
to him by Salkeld, Carthew, Levinz, Shower, and Skinner,— 
but these do little more than state drily the points which he 
decided, and we should have been left without any adequate 
memorial of his judicial powers had it not been for admirable 
Reports of his decisions published after his death. These, 
beginning with Easter Term, 6 W. & M., were compiled by 
Lord Raymond, who was his pupil, and who became his 
successor. Many of them are distinguished by animation 
as well as precision, and they form a delightful treat to the 
happy few who have a genuine taste for juridical science. 

In deciding private rights, Chief Justice Holt’s great 


* Own Times, iii. 6, t+ Tatler, No. xrv. 


LIFE OF CHIEF JUSTICE HOLT. 


achievement was, that he moulded the old system which he 
found established to the new wants of an altered state of 
society. The rules of the common law had been framed in 
feudal times, when commerce was nearly unknown and per- 
sonal property was of little value. Manufactures were now 
beginning to flourish; there was an increased exchange of 
commodities with foreign countries; and the English colo- 
nies in America were rising into importance. Yet, it having 
been adjudged in the Year-Booxs that “a chose in action 
(or debt) cannot be transferred, because livery of seisin can- 
not be given of it as of land,” the negotiability of bills of 
exchange and of promissory notes (or goldsmiths’ notes, as 
they were called) was in a state of utter confusion, and 
nobody could tell what were the liabilities or remedies 
upon them.* By a long series of decisions, and by an act 
of parliament which he suggested, he framed the code by 
which negotiable securities are regulated nearly as it exists 
at the present day. He likewise settled several important 
questions in the law of insurance, although it was reserved 
for Lord Mansfield to expand and to perfect this important 
branch of our jurisprudence. From Holt’s acquaintance with 
the writings of the civilians, he most usefully liberalised, 
defined, and illustrated the general law of contracts in this 
country. 

The most celebrated case which he decided in this depart- 
ment was that of Coggs v. Bernard, in which the question 
arose, “‘ whether, if a person promises without reward to take 
care of goods, he is answerable if they are lost or damaged 
by his negligence?” In a short compass he expounded with 
admirable clearness and accuracy the whole law of batlment, 
or the liability of the person to whom goods are delivered 
for different purposes on behalf of the owner; availing him- 
self of his knowledge of the Roman civil law, of which most 


* Tt was then doubted whether any one could draw, accept, or indorse a bill 
of exchange except a merchant ?— whether notice of the dishonour of a bill was 
necessary to charge the drawer or indorser?—whether an indorser was liable 
except on default of the drawer ?— whether there was any distinction between 
foreign and inland bills ?—-whether interest was recoverable on dishonoured 
bills ? and whether a promissory note, payable to order, was transferable by in- 
dorsement ? 


137 


CHAP. 
XXIII. 





A.D. 1689 
—1710. 


His cele- 
brated 
judgment 
in Coggs », 
Bernard, 


138 


CHAP: 
XXIII. 


A.D. 1689 
—I1710, 


He lays 
down the 
doctrine 
that a slave 
becomes 
free by 
breathing 
the air of 


England. 


REIGN OF WILLIAM AND MARY. 


English lawyers were as ignorant as of the Institutes of 
Menu. ‘Thus he began: — 

“ There are six sorts of bailments : — First, a mere delivering 
goods by one man to keep for the use of the owner; and this I call 
a depositum. 'The second sort is where goods are lent to a friend 
gratis to be used by him; and this is called commodatum, because 
the thing is to be restored in specie. The third sort is where 
goods are left with the bailee to be used by him for hire; this is 
called locatio et conductio ; the lender is called locator, and the 
borrower conductor. ‘The fourth sort is where goods are delivered 
to another as a pawn to be a security to him for money borrowed 
of him by the bailor; and this is called in Latin vadium. The 
fifth sort is where goods are delivered to be carried, or something 
to be done about them, for a reward to be paid by the person who 
delivers them to the bailee. The sixth sort is where there is a 
delivery of goods to somebody who is to carry them or do some- 
thing about them gratis, without any reward for such his carriage 
or work ; which is the present case.” 

He then elaborately goes over the six sorts of bailment, 
showing the exact degree of care required on the part of the 
bailee in each, with the corresponding degree of negligence 
which will give a right of action to the bailor. In the last 
he shows that, in consideration of the trust, there is an 
implied promise to take ordinary care; so that, although 
there be no reward, for a loss arising from gross negligence 
the bailee is liable to the bailor for the value of the goods. 

Sir William Jones is contented that his own masterly 
** Hssay on the Law of Bailment” shall be considered merely 
as a commentary upon this judgment; and Professor Story, 
in his “‘ Commentaries on the Law of Bailments,” represents 
it as “a prodigious effort to arrange the principles by which 
the subject is regulated in a scientific order.” 

Holt was the first to lay down the doctrine, which was 
afterwards fully established in the case of Somersett the 
negro *, that the status of slavery cannot exist in England, 
and that as soon as a slave breathes the air of England he is 
free. The question originally arose before him in a very 
technical shape. In point of fact, a slave had been sold in 
Virginia, where slavery was allowed by law; and, an action 


FeO Stir. 23. 


LIFE OF CHIEF JUSTICE HOLT. 


being brought in the Court of King’s Bench for the price, 
the declaration stated that “ the defendant was indebted to 
the plaintiff in the parish of St. Mary-le-Bow, in the ward of 
Cheap, in the city of London, for a negro slave there sold 
and delivered,” —allegations of time and place in such pro- 
ceedings being generally immaterial. But on this occasion, 
after a verdict for the plaintiff, there was a motion in arrest 
of judgment because the contract in respect of which the 
supposed debt arose was illegal. Holt, C. J.: ‘As soon as 
a negro comes into England he is free; one may be a villein 
in England, but not a slave. The action would have been 
maintainable if the sale had been alleged to be in Virginia, 
and that, by the law of the country, slaves are saleable 
there.” Judgment arrested.* 

Subsequently, an action of trover was brought in the 
Court of Queen’s Bench to recover the value of a negro 
alleged to be the property of the plaintiff, and to have been 
unlawfully detained by the defendant. The plaintiff’s counsel 
relied upon a decision of the Court of Common Pleas, “that 
trover will lie for a negro, because negroes are heathens, 
and therefore a man may have property in them, and, 
without averment, notice may be taken judicially that 
negroes are heathens.” But per Holt, C. J.: ‘*'Trover does 
not lie for a black man more than for a white. By the 
common law no man could have a property in another man, 
except in special cases, as in a villein, or a captive taken 
in war; but in England there is no such thing as a slave, 
and a human being never was considered a chattel to be sold 
for a price, and, when wrongfully seised, to have a value put 
upon him in damages by a jury like an ox or an ass.” f 

He likewise scouted the doctrine about “ forestalling and 
regrating,” by which commerce continued to be cramped 
down to the end of the reign of George ILI. ; showing that, 
if acted upon, every man who wished to have a dish of fish 
must go and buy it at Billingsgate, as it would be unlawful 
for fishmongers to buy turbot or lobsters there for the pur- 
pose of selling them again. t 


* Smith v. Brown, Cases temp. Holt, 405. 
+ 3 Keble, 685.; 1 Lord Raym. 146.; 2 Lord Raym. 1275. ; Salk, 666. 
¢ 1 Shower, 292. 


139 


CHAT, 
XXITI. 


A.D. 1689 
—1710. 


140 


CHAP: 
XXIII. 


A.D. 1689 
—1710. 
His con- 
struction of 
the statute 
requiring 
persons to 
attend 
their 
parish 
churches. 


He puts 
an end to 
the prac- 
tice of 
giving evi- 
dence 
against 

a prisoner 
of prior 
miscon- 
duct — 


and of 
trying pri- 
soners in 
fetters. 


REIGN OF WILLIAM AND MARY. 


He showed considerable boldness in deciding that under the 
statute of Elizabeth, subjecting to a penalty all who do not 
frequent their parish church on Sunday, a man is excused 
who frequents any other church. Holt, C. J.: “ Parishes 
were instituted for the ease and benefit of the people, and 
not of the parson, that they might have a place certain to 
repair to when they thought convenient, and a parson from 
whom they had right to receive instructions; and if every 
parishioner is obliged to go to his parish church, then the 
gentlemen of Gray’s Inn and Lincoln’s Inn must no longer re- 
pair to their respective chapels, but to their parish churches ; 
otherwise they may be compelled to it by ecclesiastical 
censures.” * 

He put an end to the practice which had hitherto pre- 
vailed in England, and which still prevails in France, of 
trying to show the probability of persons having committed 
the offence for which they are tried by giving evidence of 
former offences of which they are supposed to have been 
guilty. Thus, on the trial before him of Harrison, for the 
murder of Dr. Clench, the counsel for the prosecution calling 
a witness to prove some felonious design of the prisoner three 
years before, the Judge indignantly exclaimed, “ Hold, hold! 
what are you doing now? Are you going to arraign his 
whole life? How can he defend himself from charges of 
which he has no notice? and how many issues are to be 
raised to perplex me and the jury? Away, away! that 
ought not to be; that is nothing to this matter.” f 

He likewise put an end to the revolting practice of trying 
prisoners in fetters. Hearing a clanking when Cranburne, 
charged with being implicated in the “ Assassination Plot,” 
was brought to the bar to be arraigned, he said, without any 
complaint having been made to him, “I should like to know 
why the prisoner is brought in ironed. If fetters were ne- 
cessary for his safe custody before, there is no danger of 
escape or rescue here. Let them be instantly knocked off. 
When prisoners are tried, they should stand at their ease.” t 

A still more important improvement in criminal trials, on 


* Britton v. Standish, Cases temp, Holt, 141. 
t 12 St. Tr. 833—874. t 13 St. Tr. 221 


LIFE OF CHIEF JUSTICE HOLT. 


his suggestion, was introduced by Parliament passing an 
act which, for the first time, allowed witnesses called for the 
prisoner to be examined upon oath. * 

Holt’s associates in the King’s Bench were very respectable 
men, who had either been removed for their independence 
by James II., or were selected from the bar for knowledge 
and good character. ‘They occasionally differed from him, 
but never factiously combined against him. We have, on 
the contrary, some remarkable instances of their candour. 
Thus, in Regina v. Tutchin, Powys and Gould having de- 
livered opinions one way, and Powell and Holt the other, 
the report concludes with this “Memorandum: Powys, Justice, 
recanted instanter, and Gould, Justice, hésttabat.”t At times 
he was too subtle and profound for them. Of this Lord 
Raymond gives an instance in language which shows that 
he had no great veneration for the puisnies. After mention- 
ing a decisive objection to an action started by the Chief 
Justice, he says, ‘“‘ The three judges seemed to be in a sur- 
prise, and not, in truth, to comprehend this objection; and, 
therefore, they persisted in their former opinion, talking of 
‘agreements, ‘intent of the party, ‘binding of the land, and 
I know not what; and so they gave judgment for the plaintiff, 
against the opinion of Holt, Chief Justice.” { 

We haye a remarkable proof of the overwhelming weight 
which his opinion carried, even when he was wrong. An 
action being brought against the Postmaster General for the 
loss of Exchequer bills occasioned by the negligence of an 
inferior agent in the employment of the Post Office, Holt, by 
a false analogy between this and actions against the sheriff 
and other officers who are supposed to do in person the duty 
the breach of which is, complained of, maintained that the 
Postmaster General was liable. Powys, Gould, and Turton, 
taking a juster view of the subject, said that, although an 
action lies against a public officer at the suit of those who 
suffer a private damage from his default, it must be brought 
against the person who has violated the law; and that to 
apply the maxim respondeat superior to the head of a great 


* 7] Anny st, 2encs. 9s + 6 Mod. 287. 
t Brewster v. Kitchen, 1 Lord Raym. 322. 


141 


CHALE: 
XXIII. 


A.p. 1689 
—1710. 
Holt’s in- 
fluence 
with his 
brother 
judges. 





Weight of 
his opi- 
nion with 


the public. 


142 


CHAP. 
XXIII. 


A.D. 1689 


—1710. 


His con- 
duct in 
presiding 
at the trial 
of state 
prosecu- 
tions, 


REIGN OF WILLIAM AND MARY. 


department of the state would be injurious to the indi- 
vidual, and detrimental to the public. So judgment was 
given for the defendant. But, the plaintiff having declared 
that he would bring a writ of error in the Exchequer Chamber, 
and, if necessary, to the House of Lords, the Postmaster 
General was so frightened, and considered it so certain that 
Holt would be declared to be in the right, that, rather than 
continue the litigation, he paid the whole of the demand.* 

One of the most whimsical questions which arose before 
him he thus settled: “If a man be hung in chains on my 
land, after the body is consumed, I shall have the gibbet and 
chain as affixed to the freehold.” + 

But, as a mere Judge settling civil rights, great as were 
his merits, he probably would soon have been known only to 
dull lawyers who search for precedents. It was by his con- 
duct in presiding on the trial of state prosecutions, and in 
determining questions of constitutional law in which the two 
Houses of Parliament were parties, that he acquired an im- 
mortal reputation. 

During the two last preceding Stuart reigns, the adminis- 
tration of criminal justice in cases in which the Crown was 
concerned had been becoming worse and worse, till at last 
it reached the utmost verge of infamy. The most powerful 
justification of the Revolution will be found in the volumes 
of the State Trials; and I have heard the late Lord Tenterden, 
a very zealous though enlightened defender of indefeasible 
hereditary right, declare that “they almost persuaded him 
to become a Whig.” Chief Justices, worse than any before 
known, were turned out to make place for successors who 
were still more atrocious. From the proceedings on the 
trials of Alderman Cornish and of Mrs. Gaunt we may see 
that, from a course of unblushing violation of the rules framed 
for the protection of innocence, the judges had lost all sense 
of decency, and were in the habit of browbeating witnesses, 


* Lowe v. Sir Robert Cotton, 1 Lord Raym. 646, ‘This strange opinion of 
Holt was solemnly overruled by the Court of King’s Bench in Lord Mansfield’s 
time; the law ever since being considered quite settled in favour of the Post- 
master General. Whitfield v. Lord Le Despencer, Cowp. 754. 

+ 1 Lord Raym. 738. But the French Courts lately decided that a stone 
falling from the heavens belongs to the finder, and not to the owner of the field 
on which it falls, 


LIFE OF CHIEF JUSTICE HOLT. 


insulting juries, and seeking to crush the accused, without 
any consciousness of impropriety. 

Holt had been Chief Justice little more than a year, when, 
as a Criminal Judge between the Crown and the subject, his 
qualities were put to a severe test. Lord Preston, a Scottish 
nobleman, had engaged in a very formidable conspiracy to 
dethrone King William and to restore King James. Had 
he succeeded, he would have been celebrated in history for 
his loyalty ; and the first consequence would have been, that 
the ministers and judges now acting under royal authority 
would have been tried as traitors. According to recent 
examples, the prisoner, if not attainted by act of parliament 
without the form of trial, ought, after reading some deposi- 
tions against him taken in his absence, and the examination 
of a pretended accomplice, to have been stopped as often as 
he attempted to speak in his defence; and, upon a verdict of 
guilty by a packed jury, to have been led off to execution. 
But this was a new era in our juridical annals. Lord Preston 
had quite as patient and as fair a trial as any prisoner would 
have before Lord Denman in the reign of Queen Victoria. 
He first resolutely insisted that he was not liable to be tried 
in this fashion, because he was a peer of Scotland. When 
his plea was properly overruled, he expressed some appre- 
hension that he might have given offence by his pertinacity ; 
but the Chief Justice mildly observed, “ My Lord, nobody 
blames you, though your Lordship do urge matters that can- 
not be supported; and we shall take care that they do not 
tend to your Lordship’s prejudice. We consider the condition 
you are in; you stand at the bar for your life: you shall 
have all the fair and just dealings that can be; and the Court, 
as in duty bound, will see that you have no wrong done you.” 
Although a clear case for the Crown was made out by wit- 
nesses of undoubted credit, and the Chief Justice summed up 
the evidence with perfect accuracy and fairness, the prisoner 
repeatedly interrupted him. Holt, C. J.: “ Interrupt me as 
much as you please, if you think I do not observe right; I 
assure you I will do you no wrong willingly.” Lord Preston: 
“ No, my Lord, I see it well enough that your Lordship 
would not.” When the jury were about to retire to consider 


143 


CHAP. 
XXIII, 


Trial of 
Lord Pres- 
ton for high 
treason. 
A.D. 1690. 


A.D. 1696. 
Rex v. 
Charnock. 


REIGN OF WILLIAM AND MARY. 


of their verdict, Lord Preston requested to speak again, 
although he had been before fully heard. Holt, C. J.: “ It 
is contrary to the course of all proceedings to have anything 
said to the jury after the Court has summed up the evidence ; 
but we will dispense with it: what further have you to say ?” 
Lord Preston: “I humbly thank your Lordship; I am not 
acquainted with such proceedings, but, whatsoever my fate 
may be, I cannot but own that I have had a fair trial for my 
life.” He was then patiently heard, and he chiefly com- 
plained of some harsh treatment he had experienced from the 
new Government when he wished, as he alleged, to live 
quietly in the country. Holt, C. J.: “Suppose your Lord- 


ship did think yourself hardly used, yet your Lordship must 


remember it was in a time of danger your Lordship was 
taken up, and you had showed your dissatisfaction with the 
present Government; and, therefore, they were not to be 
blamed if they secured themselves against you.” The jury, 
without hesitation, found a verdict of Guiury ; but, with the 
entire concurrence of the Chief Justice, the prisoner after- 
wards received a free pardon.* 

When Charnock, and the other conspirators engaged in the 
attempt upon the life of King William, came to be tried 
before him, although he was obliged to refuse them a copy 
of the indictment and the assistance of counsel because the 
statute to regulate trials for high treason had not come into 
operation, he conducted the trial with the utmost impartiality 
aud moderation, and in strict conformity to the rules of evi- 
dence as we now understand them. At the same time, he 
answered with firmness the objection that ‘words cannot 
amount to treason,” marking the distinction whether the 
words have reference to an act. Holt, C. J.: “Now I must 
tell you, gentlemen, it is true in some cases that words, how- 
ever seditious, are not treason; for such words loosely spoken, 
without relation to any act or design, are only a misdemeanor. 
But arguments, and words of persuasion, to engage in a 
design on the King’s life, and directing or proposing the best 
way for effecting it, are overt acts of high treason. If two 
agree together to kill the King, though the agreement be verbal 

* 12 St. Tr. 646—822.; Lives of the Chancellors, iv. 103. 





LIFE OF CHIEF JUSTICE HOLT. 


only, they are guilty of this offence ; consulting together for 
such a purpose, though there is nothing reduced to writing, 
and nothing done upon it, is an overt act of high treason.” * 
The prisoners were very justly found guilty, and executed. 

Before Ambrose Rookwood, implicated in the same con- 
spiracy, could be brought to trial, the statute for regulating 
trials for high treason had come into operation; and Sir 
Bartholomew Shower, being assigned as counsel for him, was 
making some apologies for the boldness of the line of defence 
adopted. Holt, C. J.: “Never make apologies, Sir Bar- 
tholomew, for it is as lawful for you to be of counsel in this 
case as it is in any other case in which the law allows counsel. 
It is expected you should do your best for those you are 
assigned to defend against the charge of high treason (though 
for attempting the King’s life), as it is expected in any other 
case that you do your duty to your client.” | He summed up, 
however, with energy, taking care, as he always properly did, 
to assist the jury in coming to a right conclusion. Thus 
he began: —“ The prisoner is indicted for high treason in 
designing and compassing the death of the King, which was 
to be effected by an assassination in the most barbarous and 
wicked manner, being to surprise the King and murder him 
in his coach. The question, gentlemen, is, whether this pri- 
soner be guilty of the crime, or no?” t 

Holt’s conduct, in presiding at these trials, was applauded 
even by the Tories. But a charge was brought against him, 
by Ralph, of straining the law of high treason to please the 
Government in the case of Sir John Freind.§ The bigoted 
historian, having bitterly censured the conviction, says, with 
affected candour, “ The Lord Chief Justice Holt, who pre- 
sided on this occasion, has in general the character of an up- 
right judge; but almost all lawyers have narrow minds, and, 


* 12 St. Tr. 1451. Afterwards, on the trial of Sir William Parkyns, con-' 
cerned in the same plot, Holt, in commenting on the treasonable consult, ob- 
served, — “ But, says Sir William Parkyns, ‘this is only words, and words are 
not treason;’ they are words that relate to acts, and, if you believe that they 
were spoken, they amount to treason.”” — 13 St. Tr. 132. These passages, if 
cited, might have considerably shortened certain debates in the House of Com- 
mons in the session of 1848, on the “ Bill for the Protection of the Crown and 
Government.” 

7S St. Tr, 154, qalbe263. § Ib. 1. 


VOL. II. L 


145 


CHAP. 
XXIII. 


Rex v. 
Rookwood. 


A.B. 1696. 
Vindiea- 
tion of 
Holt for 
the law 
laid down 
by him in 
Sir John 
Freind’s 
Case. 


146 


CHAP. 
XXIII. 





A.D. 1696. 


REIGN OF WILLIAM III. — 


by the whole drift of their studies, find themselves biassed to 
adhere to the King against the prisoners.” The direction given 
to the jury on this occasion, when examined, will be found 
quite unexceptionable. The prisoner was indicted for com- 
passing the King’s death, and was clearly proved to have had 
the design of dethroning him. An overt act relied upon was, 
despatching a deputy to France to invite the French King to 
send over an army to assist those confederated against the 
Government. Having summed up the evidence, the Chief 


Justice said: — 

“ Now, Sir John Freind insists, as a matter of law, that as the 
statute of Edward III. makes two treasons, one compassing the 
death of the King, and another the levying of war; and as war 
was not actually levied in this case, a bare conspiracy or design to 
levy war does not come within this law against treason. For that, 
I must tell you, gentlemen, that if there be only a conspiracy to 
levy war, it is not treason; but.if the design be either to kill the 
King, or to depose him, or imprison him, or put any force or re- 
straint upon him, and the way or method of effecting the object is 
by levying war, then the conspiracy to levy war for that purpose 
is high treason, though no war be levied; for such conspiracy is 
an overt act, proving the compassing the death of the King. Ifa 
man designs the death, deposition, or destruction of the King, and, 
to effect the design, agrees and consults to levy war, — that this 
should not be high treason, no war being actually levied, is a very 
strange doctrine, and the contrary has always been held to be law. 
There may be war levied without any design upon the King’s 
person or endangering of it, which, if actually levied, is high 
treason ; but a bare design to levy war, without more, does not 
amount to that offence.” 

This distinction is fully justified by prior authorities, and 
has ever since been adhered to. Erskine, in his celebrated 
defence of Hardy, actually cites this very passage with ap- 
plause, — saying, “If I had any thing at stake short of the 


life of the prisoner, I might sit down as soon as I have read 


it; for if one did not know it to be an extract from an ancient 
trial, one would say it was admirably and accurately written 


for the present purpose.” * 
* 13 St. Tr. 1—64. The late statute, 11 Vict. ¢. 12., will probably for 


ever put an end to such questions, as we shall henceforth have no trials for high 
treason unless where there has been an actual design against the person of the 


LIFE OF CHIEF JUSTICE HOLT. 


Without meaning any reflection upon Holt, who always 
maintained his character as a good Whig, I must mention his 
doctrine respecting the liberty of the press, which shows that, 
in the second reign after the Revolution, the legal right of 
political discussion had not yet been acquired. If this doc- 
trine were now acted upon, the “ Government Journal,” which 
supports, through thick and thin, all the measures of the 
administration for the time being, would have a monopoly, 
and there is hardly a newspaper published in the United 
Kingdom which might not be prosecuted as libellous. On the 
trial of the printer of the OBSERVATOR for an article abusing 
Queen Anne’s ministers pretty freely, but in language which 
we should consider very innocent, the defendant’s counsel 
haying attempted to justify it, Holt, C. J., observed: “I 
am surprised to be told that a writing is not a libel which re- 

ects upon the government, and endeavours to possess the 
flects upon the g t, and end to p tl 
people with the notion that the government is administered 
by corrupt persons. If writers should not be called to ac- 
count for possessing the people with an ill opinion of the 
government, no government can subsist. You are to con- 
sider whether the words which I have read to you do not 
tend to beget an ill opinion of the administration of the 
government. Their purport is, that ‘ those who are em- 
ployed know nothing of the matter, and those who do know 
are not employed; that men are not adapted to offices, but 
offices to men, out of a particular regard to their interest and 
not to their fitness.’” The defendant was accordingly found 

4 Pere 
guilty. 
sovereign, or an actual levying of war, or an actual adhering to the king’s ene- 
mies. Conspiracies to bring about a revolution in the government, or to levy 
war, will henceforth be prosecuted as felonies. This appears to me to be a 
great improvement in our criminal code. The construction put upon. the 
statute of Edward III., that a conspiracy to levy war was an overt act, to prove 
a compassing of the King’s death, was very strained and far-fetched. Different 
offences against the state are now properly discriminated, and between treason 
and misdemeanor an intermediate class is established, with easy means of prose- 
cution and an appropriate punishment. The conviction of Mitchell upon this 
statute has proved its efficacy. (May 29. 1848.) 

* 14St. Tr, 1128. But, although such was considered the letter of the law, 
the periodical press was much less decorous than at the present day, and the 
private life of public men was then mercilessly exposed and traduced. Any one 

‘now writing of political opponents as Swift did of Somers and Cowper, with 
whom he had been on terms of intimate friendship, would be expelled from 


society. 
eZ 


147 


CHAP. 
XXIIT. 





Liberty of 
the press in 
the reign 
of Queen 
Anne. 


A.D. 1704. 


148 


CHAP. 
XXIV. 


Holt’s con- 
test with 
the House 
of Lords in 
Rex v. 
Knowllys. 


A.D. 1694. 


REIGN OF WILLIAM III. 


CHAPTER XXIV. 


CONTINUATION OF THE LIFE OF LORD CHIEF JUSTICE HOLT TILL 
THE TERMINATION OF HIS CONTESTS WITH THE TWO HOUSES 
OF PARLIAMENT. 


I now come to Holt’s contests with the two Houses of Par- 
liament, from which his popularity has principally arisen. 
The first was with the House of Lords, and throughout the 
whole of it he conducted himself most laudably — strictly 
confining himself within the jurisdiction of his court, and, 
while he nobly vindicated his own independence, never seek- 
ing an opportunity for display or wantonly hazarding a col- 
lision between rival authorities. 

An indictment for murder having been found against 
Charles Knowllys, Esq., and removed by certiorari into the 
Court of King’s Bench, he pleaded in abatement “that he 
was a peer of the realm, and ought to be tried by his peers, 
being, as of right, Earl of Banbury, and lineally descended 
from William Knowllys, created Earl of Banbury by King 
Charles II.” The replication stated, “‘ that the prisoner had 
presented a petition to the Lords spiritual and temporal, pray- 
ing that he might be tried by them on this charge, and that 
parliament had thereupon, secundum legem et consuetudinem, 
resolved that he had no right to the Earldom of Banbury.” 
There was a demurrer to the replication, and the Lords very 
absurdly were much offended that the Court of King’s Bench 
did not instantly, in conformity to this resolution, overrule 
the plea. But, after solemn argument, Holt gave judgment 
that the plea was good, and the replication bad — mainly 
upon the ground that this could not be considered res judicata 
as the Lords had no authority to decide a question of peer- 
age except on a reference from the Crown, and, therefore, 
that their resolution respecting the Earldom of Banbury was — 





LIFE OF CHIEF JUSTICE HOLT. 


a proceeding coram non judice and a nullity. Having clearly 
shown that the Lords had no original jurisdiction on the sub- 
ject, and that the question of the prisoner’s right to be tried 
as a peer had never been judicially brought before them, he 
observed, — 


“ T admit that the House of Peers has jurisdiction over its own 
members, and is a supreme court; but it is the law which has 
vested them with such ample authority, and therefore it is no dimi- 
nution to their power to say that they ought to observe the limits 
prescribed for them by this law, which, in other respects, hath 
made them so great. As to the averment in the replication that 
the judgment was ‘ secundum legem et consuetudinem parliamenti,’ 
I know no reason for its introduction by the King’s counsel 
unless they thought to frighten the Judges: but I regard it not; 
for though I have great respect and deference for the Houses of 
Parliament, yet I sit here to administer justice according to the 
law of the land, and the oath I have sworn. Inheritances are to 
be determined not by the custom of parliament, but by the com- 
mon law of England, which is the birthright of every Englishman. 
Custom ought to consist in usage, and I desire to see the pre- 
cedent of such judgments. No precedent hath been alleged to 
warrant the determing inheritances originally per legem par- 
liamenti. If inheritances were determinable by the Lords without 
their having jurisdiction, they would have uncontrollable power, 
and ‘ res est misera, ubi jus est vagum. ” 

So judgment was given in favour of the plea in abatement, 
and the prisoner was discharged without being tried. 

It is quite clear that Holt had not in the slightest degree 
encroached on the privileges of the House of Lords. His 
court had jurisdiction of the murder,only upon the sup- 
position that the party accused was a commoner, and, unless a 
sufficient answer was given to the plea that he was a peer, 
its jurisdiction was gone. The resolution of the Lords on 
his petition, being a proceeding coram non judice, was no 
answer ‘at all, and the trial before the King’s Bench there- 
fore could not possibly go on. 

Knowllys, when set at liberty, still assumed the title of 
Earl of Banbury, and, two or three years afterwards, he 
petitioned the Crown for a writ of summons that he might 


take his seat as a-peer. This was regularly referred to the 
L 3 


149 


CHAP. 
XXIV. 


A.D. 1694, 


150 


CHAP. 
XXIV. 


He is sum- 
moned 
before a 
Committee 
of Privi- 
leges, 

Feb. 5. 
1697-8. 


REIGN OF WILLIAM IIif. 


House of Lords, who found themselves in a great puzzle ; 
for, although they now clearly had jurisdiction to examine 


‘and decide upon the claim, they were unwilling to confess 


that their former determination was invalid. ‘They very 
foolishly resolved to wreak their vengeance upon Lord Chief 
Justice Holt, and they made an order that he should attend 
the Committee of Privileges appointed to consider the claim. 
He attended accordingly, when the Chairman of the Com- 
mittee thus addressed him : — 

“ My Lord Chief Justice Holt: Their Lordships have perused 
the record of the Court of King’s Bench relating to the trial of 
the person who calls himself Earl of Banbury for murder, from 
which it appears that the Court of King’s Bench thought fit to 
quash the indictment against the said person there called Charles 
Knowllys, Esq., although the House of Lords had determined that 
he had no right to the title of Earl of Banbury. You are now 
desired to give their Lordships an account why that Court whereof 
you are Chief Justice hath so done.” Holt, C. J.: “Tacknowledge 
the thing. I gave the judgment, and I gave it according to my 
conscience. We are trusted with the law; we are to be protected 
and not arraigned; we are not to give the reasons for our judg- 
ment in this fashion, and therefore I desire to be excused giving 
any.” 

He was directed to withdraw, and, after some deliberation 
among the members of the Committee, he was called in 
again, and asked with much solemnity “if he persisted in 
the answer he had given?” 

Holt, C. J.: “The record shows the judgment I gave. It 
would be submitting to an arraignment for having given judgment 
according to law, if I should give any reasons here. I gave my 
reasons in another place at large. If your Lordships report this 
my refusal to the House, I should be glad to know when you do so, 
that I may then desire to be heard in point of law. The judg- 
ment is questionable in a proper method by writ of error; but I 
am not to be thus questioned. I am not any way to be arraigned 
for what I do judicially. The judgment may be arraigned in a 
proper manner, and then, being asked, I will state to your Lord- 
ships the reasons on which it rests. I might answer if I would, 
but I think it safest to keep myself under the protection the law 
has given me. I look upon this as an arraignment ; I insist upon 
it, if I am arraigned, I ought not to answer.” 


LIFE OF CHIEF JUSTICE HOLT. 


The Committee having reported these proceedings to the 
House, a resolution was passed “to hear the Lord Chief 
Justice as to this point, whether he did right in refusing to 
give account to the Committee of his reasons for his judg- 
ment in the King’s Bench, in relation to quashing the in- 
dictment for murder against a person who claimed to be 
Earl of Banbury.” Lord Chief Justice Holt attending, and 
being called on, the Lord Keeper said to him, — 

“ You are required to give an account why you refused to 
answer the questions put to you by a committee of this House. 
You expressed a wish to be heard when the report was made, 
and their Lordships have now sent for you to know the reasons 
why you did not think fit to communicate to the committee the 
reasons for your judgment.” Holt, C.J.: “ My Lords, I have 
only respectfully to adhere to what I addressed to the committee, 
which has been truly reported to your Lordships’ House. Your 
Lordships consitute the highest court known in this kingdom 
before which all judgments may be brought; and your Lordships 
may affirm or reverse them as seems you good. I and my brother 
judges, according to immemorial usage, have a summons to attend 
in this House ad consulendum. Your Lordships have an un- 
doubted right to ask our opinion, with our reasons, on any question 
of law which comes judicially before you. If a writ of error 
should be brought before your Lordships in Rex v. Knowllys, and 
your Lordships ask my opinion upon it, I will most willingly 
render the reasons which induced me, according to my con- 
science, to give judgment for the prisoner. But I never heard 
of any such thing demanded of any judge as that, where there 
is no writ of error depending, he should be required to give 
reasons for his judgment. I did think myself not bound by law 
to answer the questions put to me. What a judge does honestly 
in open court, he is not to be arraigned for.” 

A debate ensued, and directions were given to the Lord 
Keeper to inform him “that the questions asked him by the 
Committee were not intended to accuse.” 

In truth, this was abandoning the only ground that could be 
taken for urging the questions. If there had been any suspi- 
cion of corruption, the House, in the exercise of its inquisitorial 
powers, might have taken cognisance of the matter, and, per- 
haps, examined a party accused; but, in the absence of all no- 
tion of improper motive, it was quite plain that a judge could 

L 4 


151 


CHAP. 
XXIV. 


A.D. 1698. 


152 


CHAP. 
XXIV. 


A.v. 1698. 


His popu- 
larity from 
his triumph 
over the 
House of 
Lords. 


The 
Bankers’ 
Case. 
A.D. 1697 
—1700. 


REIGN OF WILLIAM III. 


not be interrogated respecting the reasons for a judgment not 
appealed from. Under such circumstances, the answers could 
only be to gratify impertinent curiosity. Holt must have 
been aware of the advantage he had, but he contented him- 
self with saying, ‘‘ Besides the danger of accusing myself, I 
have other good and sufficient reasons for declining to answer 
the questions propounded to me.” 

The hour of dinner had arrived, which has always 
been enough to stop important proceedings in their Lord- 
ships’ house. The debate was therefore adjourned till the 
following Monday, at which time the Chief Justice was 
again ordered to attend. In the meanwhile their Lordships 
came to their senses, and found that they had got into a very 
foolish scrape. The only step they could now take to 
assert their authority was, to commit the Chief Justice to 
prison; and, although I do not exactly know what legal 
remedy in that case he would have had, the probability is 
that, practically, he would have been released by a general 
rising of the population of London, —the struggle not adding 
much to the credit or authority of their Lordships. The 
House, therefore, by an adjournment, prudently avoided 
meeting on the day appointed, whereby the order dropped, 
and it never was renewed. The public had strongly taken 
the side of the Chief Justice, and his health was given with 
enthusiasm at all public meetings throughout the kingdom.* 

He most cautiously abstained from mixing in party politics. 
Not even in private conversation would he offer an opinion 
on the question of the Spanish Succession, and he was en- 
tirely ignorant of the negotiation of the Partition Treaties. 
He remained always on courteous terms with Lord Somers, 
but there never was much familiarity between them. In 
the famous ‘ Bankers’ Case,” which was factiously agitated 
by many, he, from a sense of duty, gave a judgment which 
was highly agreeable to the Tories.— Charles II., having 
made grants by way of annuity out of the hereditary re- 
venues of the Crown, as a compensation to those who had 
been defrauded by the shutting up of the Exchequer during 


* 12 St. Tr. 1167—1207.; 1 Lord Raym. 10.; Carth. 297.; Salk, 509; 
Lord Campbell’s Speeches, 326, 


LIFE OF CHIEF JUSTICE HOLT. 


the CABAL administration, the question was whether these 
grants were binding on King William III.? In the Ex- 
chequer Chamber, Holt supported the claim, on principles 
which we are rather surprised to find propounded by a Whig 
since the Revolution : — 


“It is objected,” said he, “that this power in the King, of 
alienating his revenue, may be a prejudice to his people, to whom 
he must recur continually for supplies. JI answer that the law has 
not such dishonourable thoughts of the King as to imagine he will 
do anything amiss to his people in those things in which he hath 
power so todo. But that which I insist on is, that it is absurd in 
its nature to restrain the King from a power of alienating his 
revenues, of which he is seised in fee. It is against the nature of 
the being of a king that he should have less power than his 
people. Suppose that before his accession the King was seised 
of lands, the crown descending upon him, he would be seised 
jure corone ;—and shall he then have less power over those 
very lands than he had when a private person? Shall he now be 
disabled to alien by being a king? ‘This would be against a 
well-know maxim, that the descent of the crown takes away all 
disability. Then it is repugnant to the constitution of the govern- 
ment. Suppose the King should be under a sudden danger of 
being invaded: if he could not raise money by alienating his 
revenue, the nation might perish; for he could not otherwise raise 
money than by an act of parliament, for which there might not be 
time. And there ought to be a power in all governments to re- 
ward persons that deserve well, for rewards and punishments are 
the supporters of all governments; and it has been the constant 
usage of the kings of England to reward persons deserving of the 
government out of the crown revenues by pensions, and giving 
estates to support the titles of Earl and other dignities. Some 
may say they do not deny the King may alienate his own demesnes 
or any lands that come to him by descent or purchase, but this 
revenue was settled by act of parliament on the crown, and there- 
fore it cannot be alienated. Ido not find any such distinction in 
our law books, nor any authority in the common or statute law 
that restrains the kings of England from alienating any sort of 
their revenues. What reason can be given why some estates 
should be alienable and others not? If an estate be settled on a 
subject by act of parliament, he may unquestionably alienate it; 
and why shall not the King have the same privilege? He has 
always done it. All the abbey lands were given to the King by 


153 


CHAP: 
LVS 


A D. 1700. 


154 


CHAP. 
XXIV. 


A.D. 1700. 


Jan. 23, 


April 10. 


On the re- 
moval of 
Lord 
Somers, 
Holt. re- 
fuses to be 
Lord 
Chancellor, 


REIGN OF WILLIAM III. 


act of parliament in general terms as here, and he has alienated 
the whole of them. So the Customs have been always granted 
away and charged by the King, although they were given to him 
by act of parliament. Here there was a consideration for the 
grant in the debt due from the crown to the grantees.” 

He was likewise of opinion that the Bankers had a remedy 
against the King by petition, or monstrans de droit.* This 
opinion was then overruled,— Lord Somers, who held the 
great seal, taking the opposite side ; — but a writ of error was 
brought in the House of Lords, and there a Tory majority 
reversed the judgment of the Exchequer Chamber. 

A motion was soon after made in the House of Commons 
for the removal of Lord Somers, and, although this was 
negatived, the King found that he could no longer go on 
with a Whig administration, and he took the great seal 
from Lord Somers, who had refused voluntarily to resign it. 

King William considered that Holt was by far the fittest 
man to succeed to it; and, suspecting that his opinion in the 
Bankers’ Case had been influenced by a wish for still higher 
elevation, sent for him to Hampton Court, and, showing him 
the “ bauble,” offered immediately to deliver it into his hand, 
with the title of Lord Chancellor, a peerage being to follow. 
What must have been the royal astonishment when Holt pro- 
nounced these memorable words, — “I feel highly honoured 
by your Majesty’s gracious offer; but all the time I was at 
the bar I never had more than one cause in Chancery, and 
that I lost, so that I cannot think myself qualified for so 
great a trust.”t The King in vain attempted to shake his 
resolution, which was perhaps strengthened by the reflection 
that the tenure of the office he already held was far more 
secure, as there seemed little probability of any administra-~ 
tion being formed which could last many weeks. All that 
Holt could be induced to promise at this interview was, that 
if there should be a necessity for putting the great seal into 
commission for a short time, he would act as one of the Lords 
Commissioners. ‘Trevor, the Attorney General, and others 


* 14 St. Tr. 30. So the law then stood. The wonder is to find it so de- 
fended. In the succeeding reign the power of alienation was put an end to by 
the legislature. 

{ Granger, i. 164,; Cole's Memoirs, p. 128. 


LIFE OF CHIEF JUSTICE HOLT. 


on whom it was pressed, having likewise refused it, a com- 
mission became necessary, and it was delivered to the joint 
keeping of Lord Chief Justice Holt, Lord Chief Justice 
Treby, and Lord Chief Baron Ward. 

These Lords Commissioners held it nearly a month; but 
this was chiefly in the Vacation between Easter Term and 
Trinity Term, and we have no report of any of their de- 
cisions. Holt was probably surprised to find that he got on 
so well as an Equity Judge, but he felt no regret in trans- 
ferring the great seal to Sir Nathan Wright, and returning 
to that court where he was sure both to decide properly and 
to decide with applause. 

Nothing else very memorable occurred to Holt during the 
reion of William III. There seemed a probability of his 
being placed in a difficult and delicate position, as adviser 
to the Peers, upon the impeachment of Lord Somers; but 
he was relieved from this embarrassment by the quarrel 
between the two Houses, which put a sudden end to the 
trial. 

It is a curious fact that our “ Deliverer,” although pro- 
fessing such a regard for liberty, actually vetoed a bill passed 
by the two Houses of Parliament to appoint the Judges 
quamdiu se bene gesserint, and still insisted on their holding 
during pleasure as long as he himself should rule, although 
he agreed to a clause in the “ Act of Settlement,” providing, 
that after the limitation of the crown, thereby introduced, 
should take effect, they should only be removable on the 
address of the two Houses of Parliament.* It may add to 
our admiration of Holt’s independent conduct on the bench, 
that he might have forfeited his office by displeasing the 
Government; but as the arbitrary dismissal of Common 
Law judges had been one of the loudest complaints against 
James II., the actual peril that a Revolution judge ran must 
have been very inconsiderable. 


On the accession of Queen Anne, Holt was immediately 
reappointed, and under her he continued Chief Justice of 


England for eight years longer, with unabated energy and 
still increasing reputation. 


TD aes Ws LILe Cc. 2; 


155 


CHAP. 
XXIV. 


A.D. 1700. 
April 27. 
He isa 
Lord Com- 
missioner 
of the 
Great Seal, 


May 21. 


March 8. 
1702. 
Accession 
of Queen 
Anne. 
Holt reap- 





156 


CHAP. 
XXIV. 





pointed 
Chief Jus- 
tice 

A majority 
of Whigs 
in the 
House of 
Lords, and 
of Tories 
in the 
House of 
Commons. 


Corrupt 
decisions of 
the House 
of Com- 
mons in 
election 
cases. 


The Ayles- 
bury Case. 
A.D. 1704. 


Qu. whe- 
ther an ac- 
tion could 
be main- 
tained by 
an elector 
against a 


REIGN OF QUEEN ANNE. 


The two Houses of Parliament were soon in an unpre- 
cedented state of antagonism to each other. From the ap- 
pointment of Whig bishops, from the elevation of some good 
Whigs to the peerage, and, I must add, from the superior 
intelligence which then distinguished the high aristocracy of 
England, — among the Lords there was a decided majority 
who supported Whig principles. But Anne’s first House of 
Commons was filled with men of whom Addison’s “ Tory 
Fox-hunter” and Fielding’s “ Squire Western” might be 
considered fair types, —ignorant, bigoted, and factious, — 
professing a love for Church and Queen, but mostly 
Jacobites in their hearts, —and, although only secretly 
drinking to “the King over the water,” openly professing 
an abhorrence of Dissenters, among whom they classed all 
men of tolerant religious feelings. Their grand scheme was 
to perpetuate their power by disqualifying all who did not 
take the sacrament according to the rites of the Church of 
England from being either electors or representatives, and 
by deciding on every controverted election in favour of their 
own partisans. In consequence, Tory candidates with only 
a small minority of real electors in their favour, by making 
corrupt bargains with returning officers, were sent to par- 
liament; and petitions to the House of Commons, com- 
plaining of these abuses, were found wholly unavailing. 

Under these circumstances began the contest about par- 
liamentary privileges which has rendered the name of Holt so 
illustrious. In the course of it he committed some errors, 
and his zeal was sometimes that of an advocate eager for 
victory, rather than of a magistrate only desirous of justice ; 
but on the whole he showed great discrimination as well as 
intrepidity, and deservedly earned the glory which he ac- 
quired. 

One of the most corrupt returns was by the Bailiffs of 
Aylesbury. The defeated candidates, who had a con- 
siderable majority of legal votes, being Whigs, knew that 
it would be in vain to petition the House of Commons, and 
it was resolved that several of the electors whose voteg had 
been rejected should respectively bring actions, in the Court 
of Queen’s Bench, against. the returning officers. In the 


LIFE OF CHIEF JUSTICE HOLT. 


first of these, one Ashby was the plaintiff, and he, clearly 
making out his case before a jury, recovered a verdict with 
large damages. The defendants then moved in arrest of 
judgment, on the ground that, although all the facts alleged 
by the plaintiff were true, an action at law could not be 
maintained by him, and that the only remedy was by petition 
to the House of Commons. 

The three Puisne Judges associated with Holt were 
respectable men, but they laboured under a suspicion of 
being Toryishly inclined; and, being rather of timid minds, 
they were alarmed by a species of action which had not been 
brought hitherto, although the principle on which it rested 
was as old as the law itself; and they severally gave opinions 
in favour of the defendants, — assigning very weak and in- 
consistent reasons. Holt, of a bold and masculine under- 
standing, as well as a deep lawyer, saw that, a private injury 
being sustained from breach of duty in a public officer, com- 
pensation ought to be given by legal process ; and I make no 
doubt that his indignation was exalted by the thought that 
he was now resisting an attempt to deprive the subject of 
legal redress against a corrupt and arbitrary system of 
government established by a faction in the House of Com- 
mons. Knowing that he was to be overruled in his own 
court, thus, in a noble strain of judicial eloquence, he poured 
forth arguments and authorities which he hoped might 
prevail in a superior tribunal, and which he was sure would 
justify him to his country : — 

Holt, C. J.: “ The single question is, whether if a free burgess 
of acorporation, having an undoubted right to give his vote in the 
election of a representative of the borough in parliament, be 
maliciously hindered from giving it by the returning officer, he 
may maintain an action against the returning officer for the injury 
he has suffered? Iam of opinion that judgment ought to be given 
for the plaintiff. My brothers differ from me in opinion, and they 
all differ from one another in the reasons for the opinion they 
have expressed. My brother Gould thinks no action will lie 
against the defendant, because, as he says, he is a judge; my 
brother Powys indeed says he is no judge, but guast a judge; 
- while my brother Powell thinks that the defendant is neither a 
judge nor anything like a judge, but only an officer to execute the 


returning 
officer for 
refusing his 
vote ? 

A.D. 1704. 


The three 
Puisne 
Judges in 
the nega- 
tive. 


Holt 
contra. 


tte eh oe 


158 


CHAP. 
XXIV. 





A.D. 1704. 


REIGN OF QUEEN ANNE. 


precept, to give notice to the electors of the time and place of elec- 
tion, to assemble them together in order to elect, to cast up the 
poll, and to declare which candidate has a majority. First, I will 
maintain that the plaintiff has a right to give his vote. Secondly, 
that being wrongfully hindered in the enjoyment of that right, 
the law gives him this action for redress: -— 1. From what my 
brothers have said, I find that I must begin to prove that the 
plaintiff had a right to vote. It is not to be doubted that the 
Commons of England form a part of the government, and have a 
share in the legislature, without whom no law passes; but, be- 
cause of their numbers, this power is not exercisable by them in 
their proper persons, and therefore by the constitution of England 
it is to be exercised by representatives chosen by and out of them- 
selves, who have the whole power of all the Commons of England 
vested in them. Knights of the shire, citizens of cities, burgesses 
of boroughs, duly elected, form the Commons’ House of Par- 
liament.” After entering at great length into the history of the 
representation of counties, cities, and boroughs, he continues: 
‘“ Hence it appears that every man that is to give his vote in the 
election of members to serve in parliament has a several and par- 
ticular right in his private capacity as a freeholder, citizen, or 
burgess. And, surely, it cannot be said that this is so inconsider- 
able aright as to apply that maxim to it, de minimis non curat lex. 
A right that a man hath to give his vote at the election of a 
person to represent him in Parliament, there to concur in the . 
making of laws which are to bind his liberty and his property, is 
of a transcendent nature, and its value is set forth in many sta- 
tutes. Thus 34 & 35 H. VIII. c. 13., giving Members of Parliament 
for the first time to Cheshire, says that, ‘ for want thereof, the in- 
habitants have sustained manifold dishonours, losses, and damages, 
as well in their lands, goods, and bodies, as in the civil and politic 
governance of the commonwealth of their said county.’ Here, 
therefore, is a right. 2.If the plaintiff has a right, he must of 
necessity have means of vindication if he is injured in the ex- 
ercise or enjoyment of it. Right and remedy, want of right and 
want of remedy, are reciprocal. It would look very strange, when 
the commons of England are so fond of sending representatives 
to parliament, that it should be in the power of a sheriff or other 
returning officer to deprive them of such right, and yet that they 
should have no redress; this would be a thing to be admired at 
by all mankind. My brother Powell, indeed, thinks that an 
action on the case is not maintainable because here is no hurt or 





LIFE OF CHIEF JUSTICE HOLT. 


damage to the plaintiff: but, surely, every injury imports a 
damage; a damage is not merely pecuniary ; an injury imports a 
damage when a man is thereby hindered of his right. For slander- 
ous words, though a man does not lose a penny by the speaking of 
them, yet he shall have an action, because the right to his fair 
fame is injured. So, if a man receives a slight cuff on the ear, 
though it cost him nothing, no, not so much as a little diachylon, 
yet he shall have his action, for it is a personal injury. It is no 
objection to say this leads to multiplicity of actions ; for if men will 
multiply injuries, actions must be multiplied too. Every man 
injured ought to have his recompence. But, says my brother 
Powys, ‘we cannot judge of this matter, because it is a par- 
liamentary thing.’ O! by all means be very tender of that ! But 
this matter never can come in question in parliament, and there 
the plaintiff could receive no compensation for the wrong he has 
suffered. ‘To allow this action will make public officers more 
careful to observe the constitution of cities and boroughs, and not 
to be partial at all elections, which is, indeed, a great and a grow- 
ing mischief, and tends to the prejudice of the peace of the nation, 
I agree we ought not to enlarge our jurisdiction; by so doing, 
we usurp both on the right of the Queen and the people. But this 
is a matter of property determinable before us, and we are bound 
by our oaths to judge of it. Was ever such a petition heard of in 
parliament, as that a man was hindered of giving his vote and 
praying them to give him remedy? ‘The Parliament undoubtedly 
would say, ‘take your remedy at law.’ It is not like the case of 
determining the merits of the return between the candidates. This 
privilege of voting does not differ from any other franchise what- 
soever. We do not deny to the House of Commons their juris- 
diction to determine elections; but we must not be frightened, 
when a matter of property comes before us, by saying, ‘it belongs 
to the Parliament.’ The Parliament cannot judge of this injury, 
nor give the plaintiff damages for it. If a returning officer cor- 
ruptly refuses a vote, and is sued before me, I will direct the jury 
to make him pay well for it. It is a great privilege to choose 
such persons as are to’ bind a man’s life and property by the laws 
they make. This privilege, belonging to the plaintiff, has been 
wantonly violated by the defendant; and I am of opinion that, 
instead of arresting the judgment, we ought to allow the plaintiff 
to have execution for the damages which the jury has awarded to 
him.” 


Judgment, however, was arrested, and such a triumph was 


159 


CHAP. 
XXIV. 


a.v. 1704, 


160 


CHAP. 
XXIV. 


A.D. 1704. 


Judgment 
of the 
King’s 
Bench re- 
versed in 
the House 
of Lords. 


Absurd re- 
solutions of 
the House 
of Com- 
mons, 


REIGN OF QUEEN ANNE. 


this considered to the Tory party, that it was celebrated by 
bonfires all over the country. But a writ of error was 
brought into the House of Lords, where the Whigs had the 
ascendancy. 

At the hearing the Judges were called in, and nine at- 
tended. Holt adhered to his opinion, and was supported by 
Barons Bury and Smith, while Justices Trevor and Price 
agreed with the three Puisnies of the Queen’s Bench. Lord 
Somers, now an ex-Chancellor, ably expounded the law, and 
enforced the arguments in favour of a reversal of the judg- 
ment; while Lord Keeper Wright, his successor, not being a 
peer, was condemned to silence. But little weight was given 
to reasoning or eloquence. It was made a mere party 
question, and, on a division, the judgment of the Court of 
Queen’s Bench was reversed by a majority of 50 to 16. 

The Whigs were at this time very unpopular, and the 
decision was viewed with no favour by the public. It threw 
the House of Commons into a transport of fury, and after a 
long debate they resolved, by a majority of 215 to 97, “ That 
the qualification of an elector is not cognizable elsewhere than 
before the Commons of England in parliament assembled : 
that Ashby, having commenced an action against the Bailiffs 
of Aylesbury for rejecting his vote, is guilty of a breach of 
the privileges of this House; and that whosoever shall in 
future commence such an action, and all attorneys or coun- 
cillors soliciting or pleading the same, are guilty of a breach 
of the privileges of this House, for which they may expect 
condign punishment.” 

The conduct of the Commons upon this occasion cannot 
be too severely reprobated. They wantonly rushed into a 
controversy with the Courts of Law and with the Upper 
House of Parliament. The action brought against the re- 
turning officer did not in the slightest degree interfere with 
any of their functions or any of their privileges; and the 
House of Lords, in reversing the judgment of the Queen’s 
Bench, had done no more than their duty, in soundly ex- 
pounding the law, and administering justice to a suitor at 
their bar. The intemperate resolutions passed had a strong 
tendency to bring parliamentary privilege into public odium, 


LIFE OF CHIEF JUSTICE HOLT. 


and to invite dangerous attacks upon it. They were 
prompted, not by any respect for freedom, but by the desire 
to perpetuate the power of a faction. 

The Lords perhaps would have done well if they had 
treated this foolish proceeding with silent contempt; but 
they appointed a committee, who reported that “ the Com- 
mons thereby assumed a power to control the law and to 
pervert justice.” A sudden prorogation of Parliament sus- 
pended the controversy. 

During the recess, the current of popular opinion turned 
strongly against the House of Commons; and various con- 
stituencies announced their determination, upon a dissolution 
of Parliament, to return Whig representatives, who might 
rescind the obnoxious resolutions. Encouraged by this spirit, 
Paty, and several other electors of Aylesbury, whose votes 
had been illegally rejected like Ashby’s, brought fresh actions 
against the returning officer. 

As soon as Parliament again met, these plaintiffs were all 
committed to Newgate, “being guilty of commencing and 
prosecuting actions at law for not allowing their votes in the 
election of members to serve in parliament, contrary to the 
declaration, in high contempt of the jurisdiction, and in 
breach of the known privileges of this House.” The captives 
having sued out writs of habeas corpus in the Queen’s Bench, 
the keeper of the gaol produced them, and made a written 
return, setting out at full length the above warrant, under 
which they were arrested and detained. ‘They then moved 
that they might be set at liberty, on the ground that their 
imprisonment was unlawful, as the warrant showed that they 
had been unlawfully committed for bringing actions which 
the highest tribunal of the country had decided to be com- 
petent. On account of the high importance of the ques- 
tion, a meeting was called of the twelve Judges, to whom it 
was submitted, and eleven of them properly held that no 
court of law could inquire into the merits of a commitment 
by either House of Parliament, for the same point had been 
solemnly decided in Lord Shaftesbury’s case; and it is clear 
that the contrary doctrine subjects all parliamentary privilege 
to the conttol of the Common Law judges, who are sup- 

VOL. II. M 


161 


CHAP. 
XXIV. 


A.D. 1704, 
Counter- 
resolutions 
of the 
House of 
Lords. 
March. 


Nov. 4. 


Writs of 
habeas 
corpus by 
the Ayles- 
bury men. 


eee 


162 


_ CHAP. 
XXIV. 


A.D. 1704. 
Holt’s opi- 
nion for 
discharging 
them, 


REIGN OF QUEEN ANNE. 


posed to be unacquainted with the subject. Holt, C.J., 
however, refused to acquiesce in this opinion, and was for set- 
ting the prisoners at liberty : — 

“ The legality of the commitment,” said he, “ depends upon the 
vote recited in the warrant; and, for my part, I must declare my 
opinion to be, that the commitment is illegal, although sorry to 
go contrary to an act of the House of Commons and the opinion 
of all the rest of the Judges of England. Thisis not such an im- 
prisonment as the freemen of England ought to submit to. The 
prisoners haye done that which was legal according to the highest 
tribunal of the country, and which the House of Commons alone 
could not make illegal. Both Houses jointly cannot alter the law 
so as to affect the liberty or property of the subject; for this pur- 
pose, the Queen must join. The necessity for the concurrence of 
the three branches of the legislature constitutes the excellence of 
our constitution. How can the bringing of an action at law for 
not allowing a vote in the election of members of parliament be 
a breach of privilege? The returning officer of a borough is not 
a servant of the House of Commons, is not acting by their autho- 
rity, and cannot be clothed with any privilege by them. To bring 
an action against a person who has no privilege, cannot be a breach 
of privilege, whether the action is maintainable or not. If a peer 
be charged with any false and scandalous matter, yet if it be by 
way of action he cannot have scandalum magnatum. But the 
plaintiffs here have a good cause of action, as we know by the 
judgment in Ashby v. White. The declaration of the House of 
Commons will not make that a breach of privilege which was 
none before. The privileges of the House of Commons are well 
known, and are founded upon the law of the land, and are nothing 
but the law. We all know that the members of the House of 
Commons have no protection from arrest in cases of treason, felony, 
or breaches of the peace; and if they declare they have privileges 
which they have no legal claim to, the people of England will not 
be estopped by that declaration. This privilege of theirs concerns 
the liberty of the people in a high degree, by subjecting them to 
imprisonment for that which heretofore has been lawful, and which 
cannot be made unlawful without an act of parliament. As to the 
House of Commons being: judges of their own privileges, I say 
they are so when a question of privilege comes before them. The 
Judges have been cautious in giving an answer in Parliament in 
matter of privilege of Parliament. But when such matter arises 
before them in Westminster Hall, they must determine it. Sup- 


LIFE OF CHIEF JUSTICE HOLT. 


pose the actions had proceeded, and the privilege had been pleaded 
as a defence, we must have given judgment whether it exists or 
not. Why are we not to adjudge on the return to the habeas 
corpus? The matter appears on the record as well this way as 
if it were pleaded to an action. We must take notice of the lex 
parliamenti, which is part of the law of the land. As to what my 
Lord Coke says, that the lex parliamenti est a multis ignorata, 
that is because they will not apply themselves to understand it. If 
the votes of both Houses cannot make law, by parity of reason 
they cannot declare it. The judgment in Ashby v. White proves 
that such an action is no breach of the privileges of the Commons. 
Why did they not commit him when he brought the action? The 
suffering of him to go on with his action, is a proof that this pre- 
tence of privilege is a new thing. ‘These men have followed his 
steps, and yet they are said to have acted in breach of the pri- 
vileges of the Commons. The Commons may commit for a crime ; 
but not without charging that a crime has been perpetrated. Lord 
Shaftesbury was committed for a contempt done in the House. 
Here the cause of the commitment being expressed in the warrant, 
we are precluded from presuming that it was for something cri- 
minal of which the Commons could take notice. J am therefore 
of opinion that the prisoners ought to be set at liberty.” 

This doctrine seems plausible as well as bold, but, when 
examined, will be found contrary both to sound reason and to 
authority ; for if the sufficiency of the cause of commitment 
by either House of Parliament can be examined on a return 
to a habeas corpus, then all parliamentary privilege would be 
determinable without appeal by every court, and by every 
single judge, in whom the power of granting a writ of habeas 
corpus is vested; and the two Houses of Parliament, deprived 
of the power of commitment for a contempt, which belongs to 
inferior tribunals, could not effectually exercise the functions 
assigned to them by the constitution. There must be a pos- 
sibility of the abuse of power wherever it is given without 
appeal, and in certain cases it must be so given under every 
form of government. One of these is the power of a su- 
preme legislature, or any branch of it, to judge of its own 
privileges. 

According to the opinion of the eleven Judges, Paty and 
the other prisoners were remanded on the ground that “ the 

M 2 


He is over- 
ruled by all 
the other 
Judges. 


164 


CHAP. 
XXIV. 


A.D. 1704, 
Qu. whe- 
ther writ 
of error lies 
on a judg- 
ment ona 
return to a 
writ of 
habeas 
corpus ? 


Commit- 
ments of 
counsel by 
the Com- 
mons. 


Fabulous 
story of 
Chief Jus- 


REIGN OF QUEEN ANNE. 


cause of their commitment was not within the jurisdiction of 
the Court of Queen’s Bench.” * 

Encouraged, however, by the opinion of Holt, and anticipat- 
ing a favourable consideration from the rival branch of the 
legislature, Paty, and the other Aylesbury men, when re- 
committed to Newgate, resorted to the attempt of bringing a 
writ of error to the House of Lords on the decision of the Court 
of Queen’s Bench. No such writ of error had ever been be- 
fore brought, and the proceeding involved the most serious con- 
sequences. Sir Nathan Wright, who was then Lord Keeper of 
the Great Seal, summoned a meeting of the twelve Judges to 
advise him whether ea debito justitie the writ should issue? 

Although there was no precedent for such a proceeding, 
Holt eagerly supported it, and, without giving any decided 
opinion that the judgment of the Queen’s Bench could thus 
be reviewed, he said that “ at all events the writ ought to 
issue, and that the House of Lords would decide whether 
they had jurisdiction or not.” In this opinion he at last in- 
duced all the Judges except one to concur. 

The Commons were in a fury. They immediately made 
out warrants of commitment against the counsel in support of 
the application, two of whom were lodged in Newgate. 
The third made his escape from the Serjeant-at-arms by let- 
ting himself down from a high window in the Temple with 
the assistance of a rope and his bed-clothes. Some violent 
Tory members even intimated a determination to move the 
commitment of Holt the Chief Justice himself, whom they 
considered the mortal enemy of their privileges. Nay, the 
following narrative is actually to be found in various books 
of anecdotes, it having been copied, without inquiry, from one 
into another : — 


“The Serjeant-at-arms of the Commons presented himself 
before Chief Justice Holt, sitting on his tribunal, and summoned 


* 2 Lord Raym, 11)6. This decision has been acquiesced in ever since 
Recently, some Judges have held out a threat that if the cause of commitment 
expressed in the warrant appears to them not to amount properly to a breach of 
parliamentary privilege they would discharge the prisoner; but such an attempt 
at usurpation is effectually guarded against by the practice which I had the 
honour to introduce in the case of the Sheriffs of Middlesex, arising out of the 
famous case of Stockdale v. Hansard, of returning to the habeas corpus in general 
words a commitment for breach of privilege, — which is allowed, on all hands, 
entirely to oust the jurisdiction of the Common Law courts, 


LIFE OF CHIEF JUSTICE HOLT. 165 


him to appear at the bar of the House to purge himself of his share CHAP. 
of the contempt. That resolute defender of the laws said, with a atk” 
voice of authority, ‘Begone !’ Soon after came the Speaker in |.) oy 
his robes and full-bottom wig, attended by many high-privilege threatening 
members, and said, ‘ Sir John Holt, Knight, Chief Justice of her panes: 
Majesty’s Court of Queen’s Bench, in the name of the Commons gpeaker of 
of England, and by their authority, I summon you forthwith to the House 
-appear at the bar of the House to answer the charge there to be iene rs 
brought against you for divers contempts by you committed in 
derogation of their ancient and undoubted privileges. His Lord- 

ship calmly replied to him in these remarkable words: ‘ Go back 

to your chair, Mr. Speaker, within these five minutes, or you may 

depend upon it I will lay you by the heels in Newgate. You 

speak of your authority, but I tell you that I sit here as an in- 

terpreter of the laws and a distributor of justice, and if the whole 

House of Commons were in your belly I would not stir one foot.’ 

The Speaker, quailing under this rebuke, quietly retired with his 
high-privilege body guard ; and the Commons, terrified to contend 

longer with such an antagonist, let the matter drop.” 

But an inspection of the Journals proves that no such 

proceedings ever took place, and shows what the real catas- 

trophe was. The two Houses, after a series of hostile resolu- 

tions and counter-resolutions, seemed ready to come to open 

war, the Commons setting writs of habeas corpus at defiance, 

and the Lords seeming determined to storm “ Little Ease,” 

in which a counsel was imprisoned for acting in obedience to 

their authority. As a preliminary step, they presented an 

address to the Queen, praying her Majesty to issue the writ 

of error to reverse the judgment of the Queen’s Bench. The 

Queen returned for answer, “that she saw an absolute ne- 

cessity for putting an immediate end to the session of Par- 
liament.” 

A dissolution almost immediately followed, and such was April s. 

the reaction that the new elections turned out greatly in 1%°% 


The abuse 


favour of the Whigs. In consequence, the Administration of privilees 
: r years the 
was remodelled, and, Lord Keeper Wright being dismissed, Tsdacnd 


the great seal was again offered to Sir John Holt. He was Cone 
Las : remedie 
now so popular, and so much respected by all parties, that py public 


his accession to a political office would have strengthened opinion on 
a general 


the Whig Government; and Lord Godolphin, and the Duchess election. 


um 3 


166 


CHAP. 
XXIV. 





A.D. 1705. 
Holt again 
refuses the 


Great Seal. 


’ Oct. 11. 


Oct. 25. 


REIGN OF QUEEN ANNE. 


of Marlborough in the zenith of her sway, pressed him to 
accept it on any terms he might demand; but he said he was 
now more unfit for it than ever, as years and infirmities were 
coming upon him, and it was a day too late for him to be 
entering on a new career. Sarah thereupon gave the great 
seal to young Mr. Cowper, of whose youthful beauty she 
was supposed to be innocently enamoured, and Holt was 
quietly permitted to end his days as Chief Justice.* 

When the new Parliament met, a large majority of the 
members were found to disapprove the proceedings of the 
last House of Commons in the Aylesbury Case; and the 
plaintiffs in the additional actions, having been discharged out 
of custody at the termination of the session, were allowed to 
obtain verdicts and execution against the returning officer 
without further disturbance. The abuse of privilege by the 
Commons thus met with its proper corrective. 

I cannot altogether defend Holt in this controversy. His 
judgment in Ashby vy. White was undoubtedly just. In 
the subsequent proceedings, although his courage is to be 
admired, it can hardly be denied that he was carried too far 
by his Whig zeal against a Tory House of Commons. All 
that he did, however, was vigorously defended by that great 
constitutional authority, Lord Somers. For above a century 
the view of privilege taken by the eleven Judges who differed 
from him was implicitly followed, but there has recently f 
been a contrary tendency, which became rather rampant 
till checked by the interference of the legislaturet and the 
superintendence of a court of error. § 


* Lives of the Chancellors, iv. ch. exiv.; 6 Parl. Hist. 225.; 14 St. Tr. 695. 

+ Lord Ellenborough was the first to countenance the notion of examining 
the commitments of the Houses of Parliament by putting an extreme case; — 
“If a commitment appeared to be for a contempt of the House of Commons 
generally, I would neither in the case of that court nor of any other of the supe- 
rior courts inquire further; but if it did not profess to commit for a contempt, 
but for some other matter appearing on the return which could by no reasonable 
intendment be considered as a contempt of the court committing, but a ground 
of commitment palpably and evidently arbitrary, unjust, and contrary to every 
principle of positive law and natural justice, we must look at it and act upon 
it as justice may require, from whatever court it may profess to have proceeded,” 
Burdett v. Abbott, 14 East, 150. 


+ 3 Vict. c. ix. § Howard y. Gosset, 


Ad oe al 


LIFE OF CHIEF JUSTICE HOLT. 


CHAPTER XXYV. 
CONCLUSION OF THE LIFE OF LORD CHIEF JUSTICE HOLT. 


Hott survived this controversy nearly five years, and con- 
tinued to discharge his judicial duties with undiminished 
ability and credit; but no other case of great permanent 
interest arose before him, and he was not in any way mixed 
up with the important political events which render the 
latter portion of the reign of Queen Anne so interesting. 
He adhered steadily to the Whig party, without incurring the 
slightest suspicion of partiality while presiding on the bench, 
and he steered clear of all the intrigues by which they rose 
or fell. From his manly good sense, he must have sadly 
lamented their imprudent impeachment of Sacheverell; but 
he was snatched away before their ruin was consummated by 
this irreparable blunder. Having been summoned to attend 
the trial with the other Judges in the House of Lords, — 
when it was about to commence he was struck with a mortal 
disorder. The last day that he ever sat in court was the 
9th of February, 1710, and at three o’clock in the afternoon 
of the 5th day of March following he expired, at his house in 
Bedford Row*, in the sixty-eighth year of his age. 
Notwithstanding the factious excitement which then pre- 
vailed, the death of this great magistrate produced a deep 
sensation in the public mind, and the regret of the Tories 
was embittered by seeing his office given as a reward for the 
violence with which Serjeant Parker had assailed Dr. Sache- 
yerell and high-church principles. Both parties united in 
showing respect for the memory of the departed Chief 
Justice. The interment was to take place at Redgrave, in 
Suffolk; and not only all the heads of the law, with the 
barristers and students, but the principal nobility and gentry 


* Then called Bedford Walk. See 2 Lord Raym. 1389. 
M 4 


167 


CHAP, 
XXV. 


Remainder 
of Holt’s 
judicial 
career. 


A.D. 1710, 


His death. 


His » 
funeral, 


168 


CHAP. 
XXV. 


a.D. 1710. 


REIGN OF QUEEN ANNE. 


in London, of all shades of political opinion, attended the 
funeral procession several miles from the metropolis. The 
admirers of Sacheverell asserted that if Lord Chief Justice 
Holt’s life had been spared, and he had attended the pending 
trial, he who had boldly withstood either House of Parlia- 
ment would have lifted up his voice against this iniquitous 
prosecution, and declared that the champion of the Church 
had done nothing worthy of death or of bonds; while the 
Whigs retorted, that a solemn proceeding instituted to vindi- 
cate the principles of the Revolution would have been 
warmly countenanced by him who had resisted the tyranny 
of James IL., who had been a distinguished member of the 
Convention Parliament, whose arguments had mainly con- 
tributed to the vote that the throne was vacant, and who, 
during his long career, had never swerved from the true 
principles of civil and religious liberty. * 

After reaching Highgate, the hearse was accompanied only 
by the brother of the deceased and a few private friends till 
it approached the place of its destination, when it was met 
by an immense assemblage from the surrounding country. 
The manor of Redgrave is famous in our judicial annals. It 
had belonged to Lord Keeper Sir Nicholas Bacon; and 
here he had entertained Queen Elizabeth— when, in answer 
to her observation that “his house was rather too small for 
him,” he replied “ Your Majesty has made me too great 
for my house.” From the family of the Bacons it had been 
purchased by Chief Justice Holt, and here he spent his 
vacations as a private gentleman, mixing familiarly with all 
ranks, and particularly with the more humble. All the in- 
habitants of this and the adjoining parishes, as if by one 
impulse, were now congregated to do honour to him whose 
face they were to see no more, but whose virtues they were 
to talk of to their children’s children. They cared little 
about his political conduct, but they had heard, and they 
believed, that he was the greatest Judge that had appeared 

* This seems to have been an anticipation of the contest between Whigs and 
Tories three years later, when the tragedy of Caro was brought upon the stage. 


“The Whigs applauded every line in which Liberty was mentioned, as a satire 


on the Tories; and the Tories echoed every clap, to show that the satire was 
unfelt.” i 


LIFE OF CHIEF JUSTICE HOLT. 169 


on the earth since the time of Daniel, and they knew that CHAP. 
he was condescending, kind-hearted, and charitable. We are ARS 
told that as the body was lowered into the grave prepared 

for it, in the chancel of the church at Redgrave, not a dry 

eye was to be seen, and the rustic lamentations there uttered 
eloquently spoke his praise. 

There is now to be admired a magnificent monument of His monu- 
white marble, which his brother erected over his grave at a ™™* 
cost of 15002, representing him in his judicial robes under a 
canopy of state, seated between emblematical figures of 
JUSTICE and Mercy, with the following inscription : — 


“VES: 

Johannis Holt Equitis Aur. 
Totius Angliz in banco regio 
Per xxi. annos continuos 
Capitalis Justiciarii 
Gulielmo Regi, Anne Reginz 
Consiliarii perpetul, 
Libertatis ac lezum Anglicarum 
Assertoris, Vindicis, Custodis 
Vigilis, acris, et intrepidi. 
Rolandus frater unicus et heres 
‘Optime de se merito 

Posuit.” * 


This praise is certainly well deserved. I should have been Holt’s 
glad if the epitaph could have truly added that he was an irik 
elegant scholar, an enlightened philosopher, a splendid orator, @4science. 
or a distinguished writer. Agreeing with Speaker Onslow, 
that ‘he was not of very enlarged notions,” I would not add, 

“ the better judge, whose business it is to keep strictly to the 
plain and known rules of law.” According to a pithy ex- 
pression which I have several times heard from the late 
Daniel O’Connell, “a judge must be a downright tradesman,” 
meaning “ the first and indispensable qualification of a judge 
is that he should thoroughly understand his profession ;” and, 
if he is at all induced to neglect his judicial duties by the 
-allurements of literature and science, or the dangerous am- 
bition of universality, it would be much better that he had 
taste for nothing more refined than the YEAR-Booxs. But 
there is no absolute incompatibility between the profoundest 
knowledge of jurisprudence and any degree of culture and 
accomplishment. We can conceive that Holt, like Somers, 


* Biographia Brit. 


170 


CHAP. 
XXV. 





He put an 
end to 
trials for 
witchcraft. 


REIGN OF QUEEN ANNE. 


might have been President of the Royal Society, and a 
member of the Kit-Cat Club. But he seems to have been 
wholly unacquainted with the philosophers and wits who 
illustrated the reigns of King William and Queen Anne; 
and Steele, who celebrates him in the TaTLER, evidently 
speaks of Verus only as an idol whom he had seen and 
worshipped from a distance. We are left to conjecture as to 
his habits; but he must have had benchers and serjeants-at- 
law for his companions, and his talk must have been of “ con- 
tingent remainders.” Yet he is the first man for a “mere 
lawyer” to be found in our annals. Within his own sphere 
he shone with unrivalled brightness. Perhaps he was carried 
too far by his admiration of the common law of England, as 
when he declared that an appeal of murder sued by the heir 
of the deceased, to be tried by battle, and excluding the 
Crown’s power of pardon, instead of being an odious prose- 
cution and aremnant of barbarism, was “a noble remedy, 
and a badge of the rights and privileges of an Englishman.”* 
His head, likewise, seems to have been a little turned by the 
applause he received for his independence, insomuch that he 
told Mr. Raymond (afterwards Lord Raymond, and his suc- 
cessor) that if the House of Lords had determined against 
him in a case of Prohibition which was clearly within their 
jurisdiction, he would not have held himself bound by their 
judgment}: but, generally speaking, he is to be considered 
a consummate jurist; above all prejudice; misled by no pre- 
dilection; seeing what the law ought to be, as well as what 
it was supposed to be; giving precedent its just weight, and 
no more; able to adapt established principles to the new 
exigencies of social life; and making us prefer judge-made 
law to the crude enactments of the legislature. 

He had the merit of effectually repealing the acts against 
witchcraft, although they nominally continued on the statute 
book to a succeeding reign. Eleven poor creatures were 
successively tried before him for this supposed crime, and 
the prosecutions were supported by the accustomed evidence 
of long fasting, vomiting pins and tenpenny nails, secret teats 


* Sarah Stout’s Case, 1 Lord Raym. 557.; 12 Mod, 373. 375. 
ft 1 Lord Raym. 545, 


LIFE OF CHIEF JUSTICE HOLT. 


sucked by imps, devil’s marks, and cures by the sign of the 
cross or drawing blood from the sorceress— which had misled 
Sir Matthew Hale: but, by Holt’s good sense and tact, in 
every instance the imposture was detected to the satisfaction 
of the jury, and there was an acquittal. One of the strongest 
prima facie cases made out before him was said to have been 
that against the woman to whom, many years before, he 
himself had pretended to be a wizard, and to whom he had 
given the cabalistic charm which was adduced as the chief 
proof of her guilt.* At last the Chief Justice effectually 
accomplished his object by directing that a prosecutor who 
pretended that he had been bewitched should himself be 
indicted as an impostor and a cheat. This fellow had sworn 
that a spell cast upon him had taken away from him the 
power of swallowing, and that he had fasted for ten weeks ; 
but the manner in which he had secretly received nourish- 
ment was clearly proved. He, nevertheless, made a stout 
defence, and numerous witnesses deposed to his expectoration 
of pins and his abhorrence of victuals, all which they ascribed 
to the malignant influence of the witch. The Judge, having 
extracted from a pretended believer in him the answer that 
* all the devils in hell could not have helped him to fast so 
long,” and haying proved, by cross-examining another witness, 
that he had a large stock of pins in his pocket, from which 
those supposed to be vomited were taken, summed up with 
great acuteness, and left it to the jury to say, not whether the 
defendant was bewitched, but whether he was non compos 
mentis, or was fully aware of the knavery he was committing, 
and’ knowingly wished to impose on mankind? The jury 
found a verdict of guwzlty, and, the impostor standing in the 
pillory to the satisfaction of the whole country, no female 
was ever after in danger of being hanged or burned in Eng- 
land for being old, wrinkled, and paralytic. 

Holt’s conduct on this occasion will appear the more meri- 
torious if we consider that he ran great risk of being de- 
nounced as an atheist; and that, to avoid this peril, preceding 
Judges, who were not believers in witchcraft, had pandered 
to the prejudices of the vulgar. Says Roger North, “If a 

* Ante, p. 121. f 14 St. Tr. 639—695. 


171 


CHAP. 
XXV. 


172 


CHAP. 
XXV. 


He exposes 
hypocri- 
tical pre- 
tenders to 
extraordi- 
nary virtue. 


REIGN OF QUEEN ANNE. 


judge is so clear and open as to declare against that impious 
vulgar opinion that the Devil himself has power to torment 
and kill innocent children, or that he is pleased to divert 
himself with the good people’s cheese, butter, pigs, and geese, 
and the like errors of the ignorant and foolish rabble, the 
countrymen cry, ‘ This judge hath no religion, for he doth 
not believe witches ;’ and so, to show they have some, hang 
the poor wretches.” * 

Holt seems to have had a high reputation among his con~ 
temporaries for detecting false pretences of all sorts, and 
exposing those who put on an aspect of extraordinary sanctity. 
There existed in his time a “society for the suppression of 
vice,” composed of men who sought to cover their own bad 
characters and pernicious habits by affecting to put the law 
in force against others less culpable than themselves. Said 
Steele, describing the Chief Justice as VeErus, “ He 
never searched after vice, nor spared it when it came before 
him ; at the same time, he could see through the hypocrisy 
and disguise of those who have no pretence to virtue them- 
selves but by their severity to the vicious. In his time there 
was a nest of pretenders to justice who happened to be em- 
ployed to put things in a method for being examined before 
him. These animals were to VERUS as monkeys are to men: so 
like, that you can hardly disown them ; but so base, that you 
are ashamed of their fraternity. It grew a phrase, ‘ Who 
would do justice on the justices?’ I have seen an old trial 
where he sat judge on two of them; one was called Trick- 
track, the other Tear-shift; one was a learned judge of 
sharpers, the other the quickest of all men at finding out a 
wench. Trick-track never spared a pickpocket, but was a 
companion to cheats. Tear-shift would make compliments 
to wenches of quality, but certainly commit poor ones. These 
patriots infested the days of VrERus, while they alternately 
committed and released each other’s prisoners. But Vrerus 
regarded them as criminals, and always looked upon men as 
they stood in the eye of justice, without respecting whether 
they sat on the bench or stood at the bar.” t 


* Life of Guilford, i. 251. 
t Tatler, No. x1tv. There must here be an allusion to some well-known 


LIFE OF CHIEF JUSTICE HOLT. 


To a band of fanatics called the “Prophets” Holt had a 
particular antipathy. One of these, named Lacy, being 
beaten in atrial before him, complained of injustice. Calamy, 
the famous Presbyterian divine, relates that, he having re- 
peated these complaints to Holt, “My Lord by this time 
was moved; and, setting his hands to his side, cried out, 
an honest cause did he call it? J tell you, sir, and you have 
full liberty to tell him, or any one else you think fit, from 
me, that it was one of the foulest causes I ever had the 
hearing of, and that none but an arrant knave would have 
had the concern in it that Lacy had; for it was a plain 
design, in concert with a notorious jilt, to have cheated the 
right heir of a good estate upon his supplying her with money. 
If one that could do this may be allowed to set up for a 
prophet, the world is come to a fine pass.” * 

Holt having, some time after, committed another of this 
brotherhood, called John Atkins, to take his trial for seditious 
language, the same Lacy called at the Chief Justice’s house 
in Bedford Row, and desired to see him. Servant: “ My 
Lord is unwell to-day, and cannot see company.” Lacy (in 
a very solemn tone): ‘ Acquaint your master that I must 
see him, for I bring a message to him from the Lord God.” 
The Chief Justice, having ordered Lacy in and demanded 
his business, was thus addressed: “ I come to you a prophet 
from the Lord God, who has sent me to thee, and would have 
thee grant a nolle prosequi for John Atkins, his servant, 
whom thou hast sent to prison.” Holt, C. J.: “Thou art a 
false prophet, and a lying knave. If the Lord God had sent 
thee, it would have been to the Attorney General, for he 
knows that it belongeth not to the Chief Justice to grant a 
nolle prosequi: but I, as Chief Justice, can grant a warrant to 
commit thee to bear him company.” This was immediately 
done, and both prophets were convicted and punished. 

It is observable that, even under Holt, criminal trials were 
not always conducted with the regularity and forbearance 
“trading justices,” belonging to a class who then and for many years after in- 
fested the metropolis, till stipendiary magistrates were at length established at 
Bow Street; but I have in vain endeavoured to trace in “ Magazines” and 
“ Trials” the individuals whom Holt is here celebrated for having exposed and 


punished. 
* Rutt’s Life of Calamy, ii. 111, 112. 


His 
detection 
of a false 
prophet. 


174 


CHAP. 
XXV. 


His prac- 
tice of in- 
terrogating 
prisoners 
on trial. 


His sup- 
posed opi- 
nion as to 
the ille- 
gality of 
employing 
the military 
to put down 
civil dis- 
turbances, 


REIGN OF QUEEN ANNE. 


which we now admire. For the purpose of obtaining a convic- 
tion when he believed the charge to be well founded, he was 
not very scrupulous as to the means he employed. To the end 
of his life he persevered in what we call “ the French system ” 
of interrogating the prisoner during the trial, for the purpose 
of obtaining a fatal admission from him, or involving him in 
a contradiction. Thus in the case, which made a noise all 
over Europe, of HAAGEN SWENDSEN, indicted capitally for 
forcibly carrying off an heiress and marrying her, the prisoner 
having asserted that, before he carried her off, she had squeezed 
his hand and kissed him, the Chief Justice asked “If she 
was consenting, why then did you force her to the tavern 
and marry her by a parson you had provided for that pur- 
pose?” The prisoner answered, “She married me with as 
much freedom as there could be in woman.” But he was 
convicted and executed.* 

Contrary to the doctrine which we hold, that soldiers are 
armed citizens, and may lawfully, like other citizens, by the 
command of a magistrate, and on an occasion of extremity 
even without the command of a magistrate, interpose to pre- 
vent the commission of a crime and to preserve or restore 
public tranquillity, Holt is said to have held that the military 
could only be lawfully employed against a foreign enemy or 
in quelling open rebellion. But this opinion of his is not to 
be found laid down on any trial, or recorded in any book of 
authority, and rests on the following gossiping story: “* A 
party of the guards was ordered from Whitehall to put down 
a dangerous riot which had arisen in Holborn, from the 
practice of kidnapping, then carried to a great extent ; and at 
the same time an officer was despatched to inform the Chief 
Justice of what was doing, and to desire that he would send 
some of his people to attend and countenance the soldiers. 
‘ Suppose, sir,’ said Holt, ‘let me suppose the populace should 
not disperse on your appearance, or at your command?’ 
‘Our orders are then to fire upon them.’ ‘Then mark, sir, 
what I say; if there should be a man killed in consequence 
of such orders, and you are tried before me for the murder, I 


* 14 St. Tr. 559—638. 


LIFE OF CHIEF JUSTICE HOLT. 


will take care that you and every soldier in your party shall 
be hanged. Return to those who sent you, and tell them 
that no officer of mine shall accompany soldiers; the laws of 
this kingdom are not to be executed by the sword. This 
affair belongs to the civil power, and soldiers have nothing to 
do here.’ Then, ordering his tipstaves and some constables 
to accompany him, he hastened to the scene of tumult, and 
the populace, on his assurance that justice should be done on 
the objects of their indignation, dispersed in a peaceable 
manner.” * Holt certainly did, in his proper person, disperse 
a riotous assembly in Holborn, with the assistance of a band 
of constables, but the dialogue between him and the officer of 
the guards I consider apocryphal. From the earliest times 
till the beginning of the 18th century, the Chief Justice of 
the King’s Bench had been in the habit of taking an active 
part in putting down disturbances.t In the Plantagenet 
reigns, when there were no standing armies or regular troops 
to be employed for this purpose, I find that he was not un- 
frequently sent into distant counties with a commission of 
array, and that he commanded in the field the forces so raised. 
Holt may very properly have expressed jealousy of the wanton 
interference of the military, but there is an extreme impro- 
bability that he should in such terms have condemned the 
employment, for the prevention of crime, of a portion of the 
posse comitatus wearing red coats instead of blue, and armed 
with muskets instead of batons. 

Holt continued, like preceding Chief Justices, to act out 
of court as a magistrate, in taking preliminary examinations 
against parties accused, and committing them for trial. Re- 
cognizances were likewise entered into before him. In the 
Journal of the second Karl of Clarendon we find the following 
entry :—“ 15th August, 1690. About six in the evening, my 
Lord Lucas went with me to my Lord Chief Justice Holt’s. 
My brother came just from Tunbridge, and went with me; 
my wife stayed in the coach. My Lord Chief Justice pre- 
sently took my recognizance to appear in the King’s Bench 

* Examiner, vol. iv. No. 14.; Notes to Tatler, ed. 1806, vol. i. p. 147. 

t It is likewise a curious fact that the judges of the King’s Bench acted as 


' police magistrates; taking preliminary examinations of witnesses, and commit- 
ting criminals for trial. 


175 


CHAP. 
XXV. 


176 


CHAP. 
XXV. 


His trial at 
bar with 
the Crown. 
Trin. 


Holt as an 
author. 


REIGN OF QUEEN ANNE. 


the first day of the next term; and in the meantime to give 
my word and honour not to disturb the Government, and to 
keep the peace. I said I agreed to all, but to the last clause ; 
which seemed a very odd one, and I could say nothing to it. 
At Lord Lucas’s desire, I spoke to my Lord Chief Justice 
about Lord Forbes’s bail; who could get none but gentlemen 
from Ireland. The Lord Chief Justice was very snappish.” * 

While Chief Justice, he had to fight a battle with the 
Crown, as well as with the Lords and with the Commons. 
The great sinecure office of Chief Clerk of the Court of 
King’s Bench, now compensated by a pension of 90002. a 
year, falling vacant, Sir John Holt granted it to his brother 
Roland, and the question arose whether the patronage of it 
belonged to the Chief Justice or to the King? This came on 
to be decided by a trial at bar before the three Puisne Judges 
and a jury. A chair was placed on the floor of the Court 
for Lord Chief Justice Holt, on which he sat wneovered near 
his counsel. It was proved that the Chief Justices of the 
King’s Bench had appointed to the office from the earliest 
times, till a patent was granted irregularly by Charles II. to 
his natural son the Duke of Grafton; and there was a verdict 
against the Crown, which was confirmed, on appeal, by the 
House of Lords.t+ 

Holt appears in the catalogue of our judicial authors, but 
does not add to its faint lustre. In the year 1708, he edited 
a collection of Crown cases from the MS. of Chief Justice 
Kelynge, adding three judgments of his own, all of which 
are upon the law of murder and manslaughter.{ His notice 
of them in his preface rather shows that he was an instance 
of a great English lawyer being utterly unacquainted with 
English composition: “The three modern cases,” says he, 
“are conceived to be of some use, therefore are thought fit to 
be published ; and if they shall be found to be of any benefit, 
it’s what is desired by the publisher thereof.” 

I am much grieved that we know so little of Holt in 
private life. He had no chronicler like Roger North, he has 


* Vol. li. p. 328, 329. 
+ Shower’s Parliamentary Cases, 111.; Skinner, 354. 
{ Rex y. Lisle, Rex vy. Plumer, Rex v. Mawgridge. 


LIFE OF CHIEF JUSTICE HOLT. 


left no diary of his own, and there is not even a scrap of a 
letter of his extant. We must particularly regret that we 
have so few of his sayings handed down to us, for, judging 
from his reprimand of the “ false prophet,” they must have 
been very racy, if sometimes a little irreverent. 

He no doubt derived much satisfaction from the able dis- 
charge of his official duties, and the high credit which he 
thereby acquired; but he had no domestic bliss. His wife, 
Anne, the daughter of Sir John Cropley, a lady of strict 
virtue, was a shrew, and they lived together on the worst 
possible terms. She fell into ill health, and he was in high 
hopes of getting rid of her. To plague her husband, she in- 
sisted on consulting a physician with whom he had a personal 
quarrel, and who, for this reason, is said to have taken 
peculiar pains in curing her. She certainly survived him 
several years ; and Dr. Arbuthnot, afterwards writing to Swift 
an account of his attendance on Gay the poet, said, “ I took 
the same pleasure in saving him as Radcliffe did in saving my 
Lord Chief Justice Holt’s wife, whom he attended out of spite 
to her husband, who wished her dead.” It is to be feared that 
although he thought he could define by law the privileges of 
the Lords and of the Commons, he was obliged to confess 
that his wife was the sole judge of her own privileges, and 
that when she pronounced him in contempt he was entirely 
without remedy. He established against the Crown his 
right to appoint the chief clerk of his court, but the nomi- 
nation of footmen in his family, as well as of housemaids, 
rested entirely with his wife.* Nevertheless, he left her by 
his will a jointure of 7002. a year. 

She brought him no children, and the whole of his great 
possessions went to his brother Roland, a descendant of whom 


is still Lord of Redgrave.t 


* Some maliciously accounted for his unwearied devotion to business by his dis- 
like of the society of Lady Holt, — in the same manner as, in the time of Judge 
Gilbert, who wrote so many excellent Jaw books shut up in his chambers in 
Serjeants’ Inn, it was said that the public was indebted for them to his 
scolding wife. 

+ George St. Vincent Wilson, Esq., great-great-grandson of Roland. 


VOL. II. N 


177 


CHAP. 
XXV. 





He was 
married to 
a shrew. 


{ 


178 LIFE OF CHIEF JUSTICE HOLT. 


CHAP. I shall conclude this memoir in the words of the writer who 
XXV. first collected ‘materials for the Life of Holt, and who thus 
Conclusion, gives him characteristic praise: “His Lordship was always 
remarkable in nobly asserting, and as vigorously supporting, 
the rights and liberties of the subject, to which he paid the 
greatest regard upon all occasions, and never suffered the 
least reflection tending to depreciate them to pass uncen- 

sured.” * 


* Biographia Brit. “ Sir John Holt.” 


LIFE OF CHIEF JUSTICE PARKER, 


CHAPTER XXVI. 


CHIEF JUSTICES FROM LORD HOLT TILL THE APPOINTMENT OF 
SiR DUDLEY RYDER. 


On the death of Chief Justite Holt, Lord Godolphin, the 
Prime Minister, resolved to give his place to Serjeant Parker, 
who, as one of the managers for the House of Commons in 
the impeachment of Sacheverell, had greatly distinguished 
himself. The Attorney and Solicitor General, Sir James 
Montagu and Sir Robert Eyre, like all sensible men, dis- 
approving of the prosecution, had been deficient in zeal when 
they assailed the libeller of VoLPONE; and neither of them 
had such political importance as to enable them to vindicate a 
claim to the promotion,—which would then have been pecu- 
liarly seasonable, as the Whigs had fallen into deep disgrace, 
and a change of administration was evidently at hand. The 
proposed appointment was very disagreeable to the Queen. 
Having attended Sacheverell’s trial, she had been much 
shocked by the freedem with which Serjeant Parker had 
ridiculed the divine right of kings and other dogmas of the 
High Church party, and still more by the acrimony with 
which he had inveighed against “ the Doctor” himself, whom 
she loved in her heart for his principles, secular as well as 
religious, and above all for his personal abuse of those minis- 
ters with whom she was now so much disgusted. But being 
warned by Harley, who already, through the agency of Mrs. 
Masham, was her confidential adviser, that the time for a 
rupture with the Whigs was not yet quite arrived, she gave 
her reluctant consent. 

Accordingly, on the 13th of March, 1710, Str THomas 
PaRKER was installed as Chief Justice of the Court of King’s 
Bench, and continued to fill the office for the four remaining 


years of Queen Anne and the first four years of the succeed- 
nN 2 


179 


CHAP. 
XXVI. 


AovAa L7TOS 
Sir Thomas 
Parker, 
afterwards 
Earl of 
Maccles- 
field, Chief 
Justice. 


180 


CIIAP. 
XXVI. 





‘A.D. aii 0 
—I171&, 
His life 
already 


written, 


April, 
1718. 
Vacancy in 
the office 
of Chief 
Justice of 
the King’s 
Bench on 


LIFE OF CHIEF JUSTICE PARKER. 


ing reign. But tracing his eventful career is a by-gone 
pleasure, for he afterwards held the great seal of England 
—till he was deprived of it on being convicted of judicial 
corruption. I must, therefore, refer those who would know 
the particulars of his extraordinary rise, and of his lament- 
able fall, to the “ Life of Lord Chancellor Macclesfield,” 
which I have already given to the world.* 

However, I cannot refrain from expressing my regret that 
some connections of his family, ashamed of his having been 
the son of a village lawyer, — of his having been at Newport 
school, along with Tom Withers the shoemaker, — of his 
having himself practised as an attorney, and of his having 
raised himself by his gigantic vigour of intellect, would fain 
represent him as having enjoyed all the advantages of high 
birth and regular education, —as having been destined to 
the bar from his childhood, and as having reached his high 
honours in the usual routine of professional progress. In 
overlooking well-established facts respecting him, they surely 
lessen the merit which belongs to him while he was ascending 
to eminence, —and they deprive him of the mitigation of 
early penury for the disreputable practices into which he was 
led by his excessive love of riches. If I were to re-write his 
life, I must substantially adhere to my former narrative, — 
which if he could peruse he would not repudiate; for he 
never pretended to an aristocratical origin, and he was 
delighted, when Chief Justice of England, to spend an even- 
ing with an old schoolfellow who had thrown aside a leathern 
apron, and whose hands were hard with rosin. f 

When Parker had gained the favour of George i) and, by 
intrigues with the rianowecitas who adtcsipanted that sove- 
reign to England, had subverted the influence of Lord Cowper, 
another Chief Justice of the King’s Bench was to be provided. 
The new Chancellor was determined that he would not com- 
mit the blunder of raising up to high office a formidable rival, 


* Lives of the Chancellors, vol. iv. eh. exxi. 

+ In a new edition of my Lives of the Chancellors I have pointed out his 
pedigree from the Parkers of Park Hall, and I have shown that he certainly 
had been entered of Trinity College, Cambridge; but the evidence is strength- 
ened as to the low condition of his father, and the obstacles he had to surmount 
in the early part of his career. 


LIFE OF CHIEF JUSTICE PRATT. 


by whom he might in turn be superseded. He therefore fixed 
upon a dull lawyer, of decent character, to whom nothing 
positive could be objected, and who, — unfit to be placed in 
the House of Lords, — without aspiring to the “ marble 
chair,” must ever remain his humble supporter. 


I am afraid that the taste of my readers may be a little 
corrupted by the exciting atrocities of the Chief Justices of 
the seventeenth century, and that some dismay may be felt 
upon the introduction of a man who is unredeemed from in- 
sipidity by the commission of a single great crime. I own 
that such company is tiresome, and we shall speedily take 
leave of him. But I must present a little sketch of this 
worthy person, who for seven years was Chief Justice of 
England. 

Sir JoHN Prarvr’s great distinction is, that he was the 
father of Lorp CAampEN. He was descended, however, 
from a respectable family long settled at Careswell Priory, 
near Collumpton, in the county of Devon. He studied at 
Oxford, and was elected a fellow of Wadham College. Al- 
though an eldest son, it was necessary that he should work 
for his bread, as the estate which had remained many genera- 
tions in his name had been alienated by his spendthrift grand- 
father. He was, therefore, called to the bar in the end of 
the reign of Charles II, and, by plodding diligence, got into 
respectable business. In the year 1700 he took the degree 
of Serjeant-at-law, and he was twice returned to the House 
of Commons as member for Midhurst. But he had no talents 
for public speaking, and in the Parliamentary Debates his 
name is not once mentioned. He was a good Whig under 
the patronage of Lord Cowper, who, while disposed to pro- 
mote him, found him quite unfit for the situation of At- 
torney or Solicitor General. His practice in the Court of 
Common Pleas, however, was considerable, for he was well 
versed in his profession; and, although reckoned heavy else- 
where, he there went by the name of the “ lively Serjeant.” 

Having remained true to his party during the four years 
of Tory rule,—on the accession of George I. the desire to 


do something for his advancement was strengthened. Lord 
nN 3 


18] 


CHAR. 
XX VI, 


his promo- 
tion to be 
Chancellor, 


Sir John 
Pratt Chief 
Justice, 


His origin 
and pro- 
gress at the 
bar, 


182 


CHAP. 
XXVI. 


A.p. 1714 
—1718. 
He is made 
a Puisne 
Judge, 


Chief Jus- 
tice of the 
King’s 
Bench, 


His most 
celebrated 
judgment. 


REIGN OF GEORGE I. 


Cowper, being restored to the office of Chancellor, in his letter 
to George III. respecting the state of the bench in West- 
minster Hall, objected to the continuance of the two bro- 
thers Sir Littleton Powys and Sir Thomas Powys as Judges 
of the King’s Bench, particularly Sir Thomas, whom he de- 
nounces as * zealously instrumental in the measures which 
ruined James II., and as still devoted to the Pretender,” 
and added, ‘If either of these be removed, I humbly re- 
commend Serjeant Pratt, whom the Chief Justice Parker, 
and I believe every one that knows him, will approve.” Ac- 
cordingly Sir Thomas Powys was superseded, and Serjeant 
Pratt, being knighted, was made a Puisne Judge of the King’s 
Bench in his stead. 

He sat four years there as a colleague of Parker, who, 
having during this time had full proof of his docility, in- 
offensiveness, and moderate sufficiency for the duties of the 
office, when about to become Lord Chancellor resolved to 
appoint him his successor. Asa step to this distinction, in 
the short interval between the resignation of the great seal 
by Lord Cowper and the delivery of it to Lord Macclesfield, 
it was put into commission, and Pratt was made a Lord Com- 
missioner. 

He took his seat as Lord Chief Justice of the King’s Bench 
on the 15th of May, 1718. 

His panegyrists (for a Chief Justice is sure to have pane- 
gyrists) lauded him — not as a great real property lawyer, or 
a great commercial lawyer, or a great crown lawyer, but as “ A 
GREAT SESSIONS LAWYER :” and in looking through Strange’s 
Reports, Lord Raymond’s Reports, Burrow’s Reports, and 
Modern Reports, in which his decisions are recorded, it is 
curious to observe how many of them turn upon questions 
of poor-rates and parochial settlement — then a new field of 
litigation. One, and one only, of these judgments is still in- 
teresting, from having been married to immortal verse. 

The widow of a foreigner, being left destitute on the death 
of her husband, who had no parochial settlement in England, 
was removed from a parish in London to the parish in the 
country in which she was born; but this parish appealed to 
the quarter sessions against the order of removal, on the 


LIFE OF CHIEF JUSTICE PRATT. 183 


Pa 


ground that a maiden settlement is for ever lost by marriage. CHAP. 
ae te . * XXVI. 

The justices at sessions, being much puzzled, referred the case 

to the Court of King’s Bench, and the decision there is thus , ,, 1713 

recorded by Sir James Burrow in his Reports : — —1722. 


« A woman having a settlement 
Married a man with none; 
The question was, he being dead, 
If what she had was gone. 


* Quoth Srr Joun Prart, the settlement 
Suspended did remain, 
Living the husband ; but him dead, 
It doth revive again. 


(Chorus of Puisne Judges.) 


“ Living the husband; but him dead, 
It doth revive again.” * 


This decision seems to have created a great sensation in His doc- 


Westminster Hall; but the glory which it conferred on Chief ‘ine of 
suspension 


Justice Pratt soon passed away, for, as far as the suspension overturned. 
was concerned “ living the husband,” it was reversed by his 
successor, Chief Justice Ryder, who determined, with his 

puisnies, that the maiden settlement continues after the mar- 

riage till a new.settlement is gained; and that although the 

wife cannot be separated from the husband by an order of 
removal, if he, having no settlement, has deserted her, she 

may be sent to her parish for relief, even in his lifetime : — 


« A woman having a settlement, 
Married a man with none: 
He flies and leaves her destitute ; 
What then is to be done? 


“ Quoth RyprEr, the Chief Justice, 
‘In spite of Sir Joun Prart, 
You'll send her to the parish 
In which she was a brat. 


« Suspension of a settlement 
Is not to be maintained ; 
That which she had by birth subsists 
Until another’s gained.’ 


( Chorus of Puisne Judges. ) 
*« That which she had by birth subsists 
Until another's gained.” ¢ 


Chief Justice Pratt acquired considerable credit by his a. 1722 
; Chief Jus- 
firm conduct in the famous controversy between Dr. Bentley PRES © 


* Burr. Sett. Cas. 124.; Burn’s Just., tit. “ Settlement.” 
{ St. John’s, Wapping, v. St. Botolph’s, Bishopgate, Burr. 8. C.367.; 2 Bott. 109. 
n 4 


184 


CHAP. 
XXXVI. 


AUDield Aes 


conduct in 
Dr. Bent- 
ley’s Case. 


A.b. 1723, 


REIGN OF GEORGE If. 


and the University of Cambridge. When, on the application 
_ of this very learned and very litigious scholar, the Court of 
King’s Bench had granted an attachment against his enemy, 
Dr. Colbateh, the author of Jus Academicum, for a contempt 
of their jurisdiction, Sir Robert Walpole and Lord Maccles- 
field attempted to exercise their influence in his favour. 
“ But,” says Bishop Monk, “the patronage of these great 
ministers was not calculated to render the unfortunate divine 
any real service. The distinguished Judge who presided on 
the bench entertained a high notion of the dignity of his 
court, and the necessity of repressing all attempts to dis- 
parage or question its authority. He had, also, too just an 
opinion of the sanctity of the judicial character not to be 
jealous of the interference of persons in power with the 
administration of justice. He heard, therefore, the repre- 
sentations of the Cabinet Ministers without the least dis- 
position to attend to them; insomuch that the Premier ac- 
counted for his inflexibility by observing that ‘Pratt had 
got to the top of his preferment, and was therefore refractory 
and not to be governed by them.’” According to our no- 
tions, we should rather blame the Chief Justice for suffering 
interviews with a party in a pending proceeding, for we read 
with surprise this mitigation of his supposed sternness: 
However, when Doctor Colbatch, by advice of the Lord 
Chancellor, waited on the Chief Justice at his house in 
Ormond Street, he behaved to him with considerable candour 
and mildness; he declared, indeed, that he viewed the 
offence in a serious light, but assured him that he would take 
no advantage of his having privately acknowledged himself 
author of the book.”—The writer of Jus Academicum, for 
having said, in allusion to the Court of King’s Bench granting 
writs of mandamus and prohibition against the University of 
Cambridge, “that they who intend to subvert the laws and 
liberties of any nation commonly begin with the privileges 
and immunities of the Universities,” was sentenced by Chief 
Justice Pratt to be imprisoned, fined 502, and bound over 
to his good behayiour for a twelvemonth, * 
Then followed Bentley’s application for a mandamus to 


* Monk’s Life of Bentley, vol. ii. ch. xvi. p. 185, 


LIFE OF CHIEF JUSTICE PRATT. 


the University of Cambridge to restore him to his academical 
degrees, of which he had been deprived without having been 
duly summoned or heard. After the case had been argued 
several successive terms, at prodigious length, Chief Justice 
Pratt said, — 


“ This is a case of great consequence, not only to the gentleman 
who is deprived, but likewise as it will affect all the members of 
the University. It is the glory and happiness of our excellent 
constitution, that, to prevent any injustice, no man is to be con- 
cluded by the first judgment ; but that, if he apprehends himself to 
be aggrieved, he has another court to which he can resort for 
relief : with this view, the law furnishes him with appeals and 
with writs of error; and in this particular case, lest the party 
complaining should be remediless, it has become absolutely ne- 
cessary for this Court to order the University to lay before us 
the state of their proceedings against him, so that if they have 
erred he may have right done to him, or if they have acted ac- 
cording to the rules of law, their acts may be confirmed. The 
University ought not to consider it any diminution of their 
honour, that their proceedings are examinable in a superior court. 
For my own part I am sure it is a consideration of great comfort 
to me, that, if I do err, my judgment is not conclusive, and my 
mistake may be rectified. As to Dr. Bentley’s behaviour when 
‘served with process out of the Vice-Chancellor’s Court, I must 
say that it was very indecent, and I can tell, if he had said as 
much of our process, we should have laid him by the heels for it. 
But however reprehensible it might be for him to say of the Vice- 
Chancellor, stulté egit, such words will not justify a suspension or 
deprivation of academical degrees. Be these matters how they 
will, surely he could not be deprived without notice. Our law 
adopts the first rule of natural justice, that no man shall be con- 
demned till he has been heard or had an opportunity of being 
heard in his defence. The Vice-Chancellor’s authority ought to 
be supported for the sake of keeping peace within the University, 
but then he must act according to law, which I do not think he 
has done in this instance.” 


The Puisnies concurred, one of them citing a precedent of 
high authority — Adam and Eve’s case before God himself. 
Fortescue, J.: “ Kven God himself did not pass sentence 
upon Adam before he was called upon to make his defence. 
‘Adam (says God), where art thou? Hast thou eaten of 


185 


CHAP. 
XXVI. 





A.D, 1723, 


186 


CHAP. 
XXXVI, 


A. Dy 1722, 


L723. 

He tries 
Layer for 
high trea- 
son, 


REIGN OF GEORGE I. 


the tree whereof I commanded thee that thou shouldst not 
eat?’ And the same question was put to Eve also.”—A 


peremptory mandamus was granted.* 

There was only one state trial before Chief Justice Pratt, 
that of Christopher Layer, prosecuted for having conspired 
to bring in the Pretender by means of a French invasion. 
On this occasion there was exhibited from the bench a harsh- 
ness which reminds us much more of ante-Revolution judges 
than of the mild demeanour of Holt. The prisoner, a gen- 
tleman of birth and education, having been brought to the 
bar at his arraignment loaded with irons, said, — 

“* My Lord, I hope I shall have these chains taken off, that I 
may have the free use of that reason and understanding which 
God hath given me. They have brought upon me the strangury 
to a degree that is very painful; and if I am told truly that your 
Lordship is afflicted with that distemper, you will pity me. I 
hope that these chains shall be taken off in the first place, and then 
I hope that I shall have a fair trial.” Pratt, C.J.: “ As to the 
chains you complain of, it must be left to those to whom the 
custody of you is committed by law, to take care that you may not 
make your escape; when you come to your trial, then your chains 
may be taken off.” Sir Robert Raymond, A. G.: “I am sure 
nothing is intended but that he should have a fair trial; but to 
complain here of chains, carries with it a reflection of cruelty, 
and we know what effect these things may have abroad. The 
prisoner hath been kept as all persons in his circumstances are 
when they have been attempting to make an escape.” Pratt, C. J.: 
*“ Alas! Ifthere hath been an attempt to escape, there can be no 
pretence to complain of hardship; he that hath attempted an 
escape once, ought to be secured in such manner as to prevent his 
escaping a second time.” Str Philip Yorke, S. G.: “It is well 
known that when this gentleman was in the custody of a mes- 
senger, he not only made an attempt to escape, but actually escaped 
out of a window, two pair of stairs high. It does not become the 
candour of a person in the prisoner’s circumstances to aggravate 
and make such misrepresentation of the usage he has received.” 
Gentleman Gaoler of the Tower of London: “ My Lord, he never 
has attempted to escape since he was in my custody.” Mr. 
Hungerford, counsel for the prisoner: “ My Lord, I beg to be 
indulged a few words: that he is in chains now is demonstrable, 


* 1 Strange, 557.; 2 Lord Raymond, 1334, 


LIFE OF CHIEF JUSTICE PRATT. 


and he hath told me they are so grievous that he cannot sleep but 
in one posture—on his back. Your Lordship may observe that the 
Gentleman Gaoler, who seems to execute his authority with all 
humanity, now helps to hold up his chains, otherwise he could not 
stand. I believe I might challenge them to give an instance 
where any prisoner was shackled with irons in the Tower before 
Mr. Layer. His Majesty’s prisoners in the 'Tower are such 
strangers to this usage, that the very materials were wanting there ; 
these fetters were sent for from Newgate, and I hope they will be 
sent back thither. Your Lordship hath hinted it as an indulgence 
intended to him when he comes to his trial, that his irons shall be 
taken off; but I humbly insist upon it, that by law he ought not 
to be called upon even to plead, till he may exercise his mental 
faculties free from bodily torture.” Pratt, C. J.:; “This is nothing 
but to captivate the people. What signifies his chains being taken 
off this minute, and afterwards put op again the next?” Mr. 
Hungerford: “ We might humbly apprehend and hope, my Lord, 
that the better to prepare himself for his trial, he may continue 
without his chains till after that time.” Pratt, C. J.: “I am of 
another opinion ; and if we should order his chains to be taken off, 
and he run away, I do not know but we are guilty of his escape. 
He shall have a fair and a just trial, but to make objections in 
matters of this nature is to cast a reflection on the Court for not 
doing that which is not in their power to do.” 


The prisoner was undoubtedly guilty, but the harsh manner 
in which his trial was conducted throughout excited a strong 
sympathy in his favour: he was regarded as a martyr; and 
his head being stuck upon Temple Bar, it was carried off, 
and long preserved as a relic. * 

Iam not aware of Pratt coming upon the political stage 
on any other occasion, except when he was consulted with 
the other Judges upon the questions which arose out of the 
disputes between George I. and the Prince of Wales (after- 
wards George II.) respecting the power of the reigning 
King, by his prerogative, to regulate the education and 
marriages of his grandchildren. He spoke immediately after 
Baron Montagu, who had no better reasons to give in favour 
of the King than the discipline among the patriarchs, who 
educated and governed all their grandchildren and great~ 


* 16 St. Tr. 94-324, 


187 


CHAP. 
XXXVI. 


ap. 1723 
—1725. 


His opi- 
nion re- 
specting 
the power 
of the 
King in 
the mar- 
riage and 
education 
of the royal 
family, 


188 


CHAP. 
XXVI. 


A.D. 1723 


—1725. 


His death. 


REIGN OF GEORGE I. 


grandchildren, and that the King is called “ parens patriz et 
custos regni et pater-familias totius regni.” Pratt tried to 
fortify himself by modern precedents : — 

“ The regulation of marriages in the royal family,” said he, “is 
an undoubted prerogative of the Crown, proved by all the argu- 
ments the nature of the thing is capable of, constantly claimed, 
enjoyed, and submitted to, the contrary being ever taken to be a 
great offence and sometimes thought high treason. The Countess 
of Shrewsbury’s case, 12 Rep. 94., is very strong. The Duke of 
Suffolk’s attempt was held high treason, proving that, at all events, 
it is an offence of magnitude. - The case of the Princess of Orange 
in Charles II.’s time is very material. The King made the match, 
and the Duke of York her father was against it. The Princess 
of Modena wished to prevent it; but the King’s answer was, 
‘it is by my consent, and none may gainsay it. Here is the 
claim of prerogative against the opinion and wishes of the father. 
Now as to the education of the children and grandchildren of the 
royal family, that is a natural and necessary consequence,—if the 
crown has the marriage of the royal family, it hath the care of 
their education. If not educated well, they cannot be married 
well. The King having the end, should havethe means; he must 
take care of their persons that they may not be disposed of to the 
prejudice of the nation. This prerogative never was disputed by 
any of the royal family, and many have been prosecuted for the 
breach of it. Nota few of the distractions and confusions which 
attended the differences between the Houses of York and Lan- 
caster arose from the marriages and education of the children of the 
blood royal not being regulated by the sovereign on the throne.” * 

When Lord Macclesfield, on his impeachment for corrup- 
tion, was deprived of the great seal, there was a general ex- 
pectation that it would have been transferred to the Chief 
Justice of the King’s Bench, who, without being an intriguer, 
like his predecessor, was well esteemed both by the King and 
the Prime Minister, and probably would have been preferred 
by them to Sir Peter King, the Chief Justice of the Common 
Pleas; but, while the impeachment was pending, Sir John 
Pratt was struck with a mortal disorder, of which he died at 
his house in Ormond Street, on Wednesday, the 24th of 
February, 1725. 

if he was not very eminent for his talents or public ser- 

* 15 St. Tr. 1216. 


LIFE OF CHIEF JUSTICE RAYMOND. 


vices, it should be known to his credit that no graver charge 
was ever brought against him than that, “ being the proprietor 
of Begeham Priory, in Kent, he dismantled the church, the 
roof of which was still standing, and laid out the site of it 
in a pleasure-garden, with flowers and gravel walks.” * 

Having had an immense number of children by two wives, 
and having been careless about his pecuniary affairs, he left 
his family nearly destitute ; but if he had been favoured with 
a glimpse into futurity he might have seen a son of his Lord 
High Chancellor, and his grandson and great grandson mar- 
quesses and knights of the garter. 





Sir John Pratt was succeeded in the office of Chief Justice 
of the King’s Bench by a man very distinguished in his day, 
who was himself raised to the peerage, and was looked upon 
as the founder of a patrician house, but whose line soon 
became extinct, and who is now little known beyond the pre- 
cincts of Westminster Hall. 

Although Lorp RayMonD was said to be descended from 
the Crusader of his name celebrated by Tasso, his branch of 
the family had fallen into great decay, and his grandfather 
was a trader in the City of London. His father, however, 
studied the law, had considerable success at the bar, and in 
the reign of Charles II., by the combination of extraordinary 
learning and extraordinary servility, was made a Puisne 
Judge, first of the Common Pleas, and then of the King’s 
Bench. This unprincipled Judge showed peculiar zeal in the 
famous Quo WARRANTO prosecution for subverting the liber- 
ties of the City of London. Chief Justice Saunders being 
then at death’s door, Sir Thomas Raymond loudly declared 
that * the Court was unanimously in favour of the Crown on 
all the points which had been discussed ;” and he might pro- 
bably have succeeded in his object if he had not been rivalled 
by Jeffreys, whose splendour of infamy dimmed every lesser 
noxious light which might otherwise have attracted the ex- 
ecrations of mankind. The aspiring Puisne himself died 
(some said from vexation at his disappointment) while still 
a young man. If he had survived, he no doubt would have 

* Hasted's Kent, ii. p. 380, 


189 


CHAE; 
XXVI. 


A.D. Li foe 


Lord Ray- 


mond. 


Son of Sir 
Thomas 
Raymond, 


A.D. 1683, 


190 


CHAP, 
XXVI. 


A.D. 1683, 


He is called 
to the bar. 


His emi- 
nence as a 
reporter. 


A.D. 1702. 
Witcheraft 
put an end 
to by the 
prosecu- 
tion of an 
impostor. 


LIFE OF CHIEF JUSTICE RAYMOND. 


been tried in the capacity of Chief Justice by James IL.; and, 
if there had been no limit to his servility, he might have con- 
tinued to preside till the King’s power to dispense with all 
statutes, and to enforce martial law in time of peace, after 
being established by judicial decision, was upset by physical 
force. He left behind him a high reputation as a lawyer, 
although a very bad one as a politician; and a volume of Re- 
ports compiled by him proves that he was a complete master 
of all the wiles of his profession.* 

At his death, his only son Robert, the subject of this little 
memoir, was only ten years old, and so escaped the contami- 
nation of his training. The lad naturally called himself a 
Tory, and he continued inclined to high prerogative notions 
till he saw reason to change his side; but through life he 
maintained a fair character for honour and independence. 

I find no more authentic account of his education than the 
inscription on his tomb, which represents him as having been 
early imbued with a love of classical learning, and as having 
devoted himself with extraordinary assiduity eed success to a 
scientific study of jurisprudence. 

He was called to the bar in the year 1694, being then 
an accomplished lawyer, and he soon got into extensive 
practice. 

His professional prosperity he himself ascribed to his habit 
of reporting. He was determined to rival, and he greatly 
excelled, the fame of his father in this line. Not only when 
he was a student, but when called to the bar, when Attorney 
General, and when Chief Justice, he wrote an account of all 
the most remarkable decisions in the Court of King’s Bench, 
giving the arguments of counsel and the opinions of the 
judges with admirable point, vigour, and exactness. f 

The first considerable case in which he appeared as counsel 
was the prosecution, before Lord Holt, of Hathaway the im- 
postor, who pretended that, being bewitched, and having fasted 
forty days, he vomited pins, and who, under pretence of dis- 
enchanting himself, had assaulted and drawn blood from the 


* He died while on the circuit in the spring of 1683, in the 50th year of his 


age. 
+ His published ee extend from Easter, 6 Will. & Mary, to Trinity, 
5 & 6 Geo. II. i 


LIFE OF CHIEF JUSTICE RAYMOND. 


supposed witch. Mr. Raymond was mainly instrumental in 
obtaining the conviction of this miscreant, which opened the 
eyes of the public to the frauds and follies of witchcraft, 
although, during the seventeenth century, they had strangely 
grown with advancing knowledge, to the unspeakable disgrace 
of legislation and of the administration of criminal justice in 


England.* 

He likewise assisted in prosecuting the famous Beau Field- 
ing for bigamy in marrying the Duchess of Cleveland, his 
former wife being then living. The case turned chiefly upon 
the validity of the first marriage by a Roman Catholic priest 
in a private room, and Mr. Raymond’s argument to prove 
its validity prevailed. + 

Being much connected with the Jacobites, he was employed 
as counsel for David Lindsay, member of a distinguished 
family in Scotland, who, having gone from that country to 


* The severest statutes against witchcraft were passed after Lord Bacon 
had published the most valuable of his immortal works, and they were blindly 
acted upon in the age of Milton and Dryden. Mr. Raymond had drawn the 
indictment against Hathaway. A specimen of his legal Latinity taken from it 
may amuse the reader: —“ Quod quidem Richardus Hathaway nuper, &c., 
laborer, existens persona malor’ nomenis et fama et impostor, et machinans et 
malitiose intendens quandam Saram Morduck ux’ cujusdam Edwardi Murdock, 
Waterman, foeminam per totum vita sue tempus existen’ honestam et piam, et 
non Sagam (Anglice, a witch), nee Magiam ( Anglice, witchcraft), Incantamen- 
tum (Anglice, enchantment), Fascinationem (Anglice, sorcery), unquam exer- 
cen’, in periculo vitze suz amissionis inducere 11 die Febr. &c. in presentia et 
auditu diversorum personarum, falso, militicse, diobolice et scient’, et ut falsus 
impostor, pretenebat et asserebat seipsum per eand’ Saram fuisse fascinatum 
(Anglice, bewitched) et occasione fascination’ illius non posse edere et per mag- 
num tempus scil’ per tempus decem septeminar’ jejunasse, ac diversis morbis 
affici, et quod ipse per ipsius Richardi extractionem sanguinis ejusd’ Sare per 
sculpationem a pretens’ fascinatione pred’ liberat’ foret; quodque predict’ 
Richardus, vi et armis eandem Saram scalpsit, et sanguinem ipsius Sare per 
scalption’ ill’ extraxit, &c., ubi revera et in facto pred, Richard’ nunquam fas- 
cinatus fuit et nunquam jejunasset per spatium pred’ nec per aliquod magnum 
tempus,” &c. &c. 

The sentence will give pleasure. After saying that he is to pay a fine of 100 
marks, it thus proceeds: — “ Et quod stabit in et super pilloriam Die Sabbati 
proximo in magis publico et aperto loco in Southwarke, inter horam decimam 
et horam tertiam ejusdem diei per spatium duarum horarum cum papiro super 
caput ejus denotante offensam suam,” &c, The same ceremony is to be repeated 
before the Royal Exchange, and again at Temple Bar. Then he was to be 
committed to the House of Correction: —‘“ Et quod flagelletur die proximo 
post adventum suum in Domum Correctionis predict’ et quod custos predict’ 
custodiat eum quotidie ad duram laborem per spatium dimidii unius anni,” — 
14.S¢. Tr. 639. 

f 14 St. Tr. 1327,  Secus if the clergyman had been a Presbyterian minis- 
ter. This compliment to the Church of Rome became necessary from the An- 
glican Church acknowledging the sufficiency of Popish orders, so as to keep up 
its own descent from the Apostles. 


191 


CHAP. 
XXVI. 


AD. 1702 
—1710. 


Prosecu- 
tion of 
Beau 
Fielding 
for bigamy. 


Raymond 
is counsel 
for Lind- 
say the 

Jacobite. 


192 LIFE OF CHIEF JUSTICE RAYMOND. 


=i _ , France, in the service of the exiled James II., had come into 
‘_ England without having obtained permission under the privy 
av. 1710, seal to do so, and was now indicted on an act of the English 
parliament which made it treason for any of the King’s sub- 
jects who were abroad when it passed, to come into England, 
without the King’s permission under the privy seal first had 
and obtained. The facts were not disputed, and the case 
resolved itself into a question of law, “ whether a native of 
Scotland was bound by this statute?” Mr. Raymond power- 
fully argued that, Scotland and England remaining separate 
and independent, the Parliament of England could not legis- 
late for Scotland or Scotchmen: but, in answer, the Attorney 
General cited Calvin’s case, which was intended for the benefit 
of Scotland, and by which it was decided that all Scotchmen 
born since the union of the crowns by the accession of James 
I. were to be considered entitled to the same privileges as 
native-born Englishmen. Mr. Raymond, in reply, without 
impeaching the authority of this very questionable judg- 
ment, argued that a native-born Scotchman might be per- 
mitted to inherit and hold lands in England, without being 
liable while he remained in his own country, or did not re- 
side in England, to be subjected to the pains of treason by 
an English Parliament. Chief Justice Holt and the other . 
Judges present overruled the defence, and sentence of death 
was passed upon the prisoner; but, the public being shocked 
by such a straining of the law, he was respited and par- 
doned. * 
Mr. Raymond, although he devoted the greatest portion of 
his time to his profession, was by no means indifferent to 
politics, and still cherished a cordial hatred of the Whigs. 
He saw, therefore, with extreme delight the blunder which 
they committed in the impeachment of Sacheverell, and he 
assisted Harcourt with his advice in defending the champion 
Mayis. Of the High Church. Accordingly, he was rewarded with 
Raymond the office of Solicitor General, and received the honour of 
made Soli- ° 
citor Ge. Knighthood. 
ee bythe As member for Lymington, in Hampshire, he now 
ories, 
entered the House of Commons; but he seems to have 
* 14 St. Tr. 987—1036. 


LIFE OF CHIEF JUSTICE RAYMOND. 


confined himself, while in office, to the routine law business 
of the Government there. 

He attached himself chiefly to Bolingbroke, and he is 
supposed to have been privy to the scheme of this bold in- 
triguer to bring in the Pretender at the death of Queen 
Anne. Of course he was turned out on the accession of 
George I. 

For six years he remained in opposition, —occupied, like 
most of his contemporaries, in intriguing alternately with the 
banished royal family, and with Tories who were willing to 
submit to the established order of things if they themselves 
might hope by any chance to get into power. 

The only great display of his eloquence preserved to us is 
his speech against the Septennial Bill, which is very curious 
as showing us that the Church-and-King men of that day 
held the same language with the modern Chartists respecting 
annual parliaments : — 

“T fear,” said he, “the prolonged duration of parliaments will be 
no cure for the general corruption supposed to arise from frequent 
elections; for as the period for which the member is to sit is pro- 
longed, the price of his return will increase in the same proportion. 
An annuity for seven years deserves a better consideration than 
for three, and those who are willing to give money for their seats 
will be governed in the bargain by the true principles of com- 
merce. Nothing will so effectually check corruption as annual 
parliaments. That was our ancient constitution, and every de- 
parture from it has been mischievous. A long parliament is plainly 
destructive of the subject’s right, and many ways inconsistent with 
the good of the nation. Frequent new parliaments are our con- 
stitution, and the calling and holding of them was the practice for 
many ages. Before the Conquest, parliaments were held three 
times every year, —at Christmas, Easter, and Whitsuntide. In 
Edward IIL.’s reign it was enacted ‘that parliaments shall be 
holden every year, or oftener if need be.’ This must be under- 
stood of new parliaments, for prorogations and long adjournments 
were not then known, and were not heard of till the reign of 
Henry VIII., who found that it best suited his tyrannical pur- 
poses to keep up a standing body of slavish representatives whom 
he had corrupted or intimidated.” After giving at great length 
the history of the Triennial Act about to be repealed, he thus 


VOL. iy oO 


193 


CHAP, 
XXXVI. 





Raymond 
in opposi- 
tion. 


ASD id Los 
His speech 
against the 
Septennial 

Bill. 


194 


CHAP. 
XXVI. 


Ande L/ Lbs 


‘ACD: 720, 


He joins 
the Whigs 
and is made 
Attorney 
General. 


May 9. 


REIGN OF GEORGE I. 


concluded : — “ Frequent and new parliaments create a confidence 
between the King and his people. If the King would be ac- 
quainted with his people and have their hearts, this is the surest 
way. I can hardly think that you wish to perpetuate yourselves ; 
yet you might do so on the same arguments; and if you pass this 
bill, I cannot doubt but that before the end of the seven years 
there will be another bill for a further prolongation. But at the 
end of the time for which you were chosen, the people will say, 
‘you are no longer our representatives; we chose you for three 
years and no longer, and you cannot choose yourselves for an ex- 
tended period ; henceforth you are usupers, and we have a right 
to put you down.’ And I must say that, in my own poor opinion 
(with great submission do I speak it), King, Lords, Commons, 
can no more continue a parliament, than they can create a par- 
liament without the choice of the people.” * 

As the seeming stability of the new dynasty improved, the 
high Toryism of Sir Robert Raymond was softened down ; 
and, at last, he was induced to take office, along with Walpole 
and Townshend, in the administration of Lord Stanhope. A 
vacancy in the office of Attorney General arose, when (hor- 
resco referens) Letchmere, who had enjoyed some eminence in 
his day, was consigned to oblivion by being created Chancellor 
of the Duchy of Lancaster and a peer. Raymond had con- 
tracted an intimacy with Walpole during the short period 
when this sagacious statesman was himself in opposition; 
and, being warned by him against the evils of permanent 
banishment from power, professed to discover that the Whigs 
were now much more reasonable than when headed by 
Godolphin and Marlborough, and declared that he might join 
them without any sacrifice of principle or consistency. He 
refused to serve under Sir Philip Yorke, who, about a year 
before, had been appointed Solicitor General at the age of 
28, and whose friends were impatient for his further promo- 
tion. Many taunts were thrown out against the renegade 
Tory; but Walpole, knowing his value as a law officer of the 
Crown, warmly supported him, and, on the retirement of 
Letchmere, he became Attorney General. 

It is to the credit of Raymond and Yorke that they acted 
together very cordially. The chief state trial which they 


* 7 Parl. Hist, 335. 


LIFE OF CHIEF JUSTICE RAYMOND. 


had to conduct jointly was the prosecution of Christopher 
Layer for high treason. On this occasion, Mr. Attorney 
General Raymond thought himself bound to show that he 
was now entirely free from the taint of Jacobitism, and thus 
he commented upon the prisoner’s scheme to bring in the 
Pretender : — 


* Gentlemen of the Jury : You will readily agree with me that 
nothing can be more dreadful to a true Briton who hath any 
regard for himself or his posterity, or love to his country, than the 
fatal consequences which must inevitably have attended such 
wicked designs had they been carried into execution with success. 
What could any one have expected from a rebellion in the heart 
of the kingdom, but plunder and rapine and murder, a total sus- 
pension of all civil rights, and a terrible apprehension of something 
yet worse to come? All this must have been endured, even if the 
attempt should have been disappointed at last. But had it pros- 
pered, had his Majesty’s sacred person been seized and imprisoned, 
and had the Pretender been placed on the throne, what a scene of 
misery had opened! A mild administration, governed by the law 
of the land under an excellent prince and as just and merciful as 
ever wore the crown, must have given way to arbitrary rule under 
a popish tyrant; all your estates must have been at the will of a 
provoked and exasperated usurper; liberty must have been for 
ever subverted, and the best of religions would be suppressed by 
Romish superstition and idolatry. Nor would these dreadful 
calamities have been confined within the bounds of his Majesty’s 
dominions ; for should the present happy establishment in this 
kingdom (the chief bulwark of the Reformation) be destroyed, 
there is great reason to fear that the Protestant religion would ere 
long be extinguished.” 


He then proceeded to open the facts of the case in a style 
of invective and rhetorical exaggeration which would be very 
much censured in an Attorney General of the present times, 
but which was then thought quite excusable. The prisoner 
was certainly guilty, and Raymond, by all except his old 
friends the Jacobites, was praised for convicting him.* 

Nevertheless, Mr. Attorney found his position, both at the 
bar and in the House of Commons, rather irksome. Bishop 
Atterbury’s case came on; and, in taking part against this 


* 16 St. Tr. 94—324. 
02 


195 


CHAP. 
XXXVI, 


Octaly22: 
His speech 
for the 
Crown in 
prosecuting 


Layer. 


196 


CHAP. 


XXVI. 


Po TIME ACIE 


He sinks 
into a 
Puisne 
Judge. 


REIGN OF GEORGE I. 


celebrated prelate, he incurred much odium, and was often 
reproached as a turn-coat. He therefore wished for the 
tranquillity of the bench; and, there being no chiefship 
likely to become vacant soon, he astonished the world by 
sinking into a Puisne Judge of the Court of King’s Bench, 
in the room of Mr. Justice Eyre. There never before had 
been an instance of an Attorney General accepting a puisne 
judgeship, and hardly any of his condescending: even to become 
Chief Baron of the Exchequer. ‘Till the Revolution, when 
parliamentary government was established, and the practice 
began of his going out with the administration which had 
appointed him, his tenure was as secure as that of the judges ; 
and, drawing higher emoluments than any of them, the great 
seal alone could tempt him readily to give up his office as 
long as his health and strength enabled him to discharge its 
laborious duties. Raymond now, probably, rued his ratting, 
but return to Toryism was impossible, and his only resource 
was a retreat in which he would be entirely rescued from 
politics. 

On the 31st of January, 1724, he was called Serjeant, 
giving rings with the motto “Salva libertate potens,” and, on 
the 3d of February following, he took his seat as junior Judge 
in the Court of King’s Bench.* 

Henceforth he devoted himself exclusively to his judicial 
duties, and he soon showed that he was destined to acquire 
the reputation of a great magistrate. He was not only 
familiarly acquainted with all professional technicalities, but 
he possessed an enlarged understanding, and he was capable 
of treating jurisprudence as a science. He, therefore, rose 
very much in public estimation, and (what was of more im- 
portance to his further advancement) he retained the friend- 
ship of Sir Robert Walpole, who had become Prime Minister, 
and was desirous of indemnifying him for the sacrifices he 
had made in joining the Whigs. 

Accordingly, he was appointed a Lord Commissioner of 

* The next judge who followed this example was Sir Vicary Gibbs. “ When 
Mr. Percival was shot at,” says Lord Brougham, “his nerves, formerly excel- 
lent, suddenly and entirely failed him; and he descended from the station of 


Attorney General to that of a Puisne Judge in the Common Pleas,”— States- 
men, vol. i. p. 133. 


LIFE OF CHIEF JUSTICE RAYMOND. 


the Great Seal when Lord Macclesfield was forced to resign 
it; and some thought that he was likely to be the successor 
of that illustrious delinquent. But it so happened that, about 
the same time, Lord Chief Justice Pratt died, and he in- 
finitely preferred the chiefship of his own court to being 
again launched on the tempestuous sea of politics. He him- 
self, at the commencement of his Reports for Easter Term, 
1725, gives us this simple statement of his elevation :— 


“ Memorandum: that Sir John Pratt, Knight, Chief Justice of 
the King’s Bench, died Wednesday, February the 24th last past, 
and I was created Chief Justice in his place by writ bearing teste 
March 2., and was sworn into the office March 3. following before 
Sir Joseph Jekyll, Knight, Master of the Rolls, and Sir Jeffery 
Gilbert, Knight, one of the Barons of the Exchequer, then two of 
the Lords Commissioners for the custody of the Great Seal; not- 
withstanding which, I continued one of the Commissioners of the 
Great Seal, and Serjeant Reynolds was sworn in before me and the 
other Lords Commissioners to be my successorasa Puisne Judge.” * 


He continued to preside in the Court of King’s Bench, 
with high distinction, above seven years; and, as a testimony 
of respect for his services, he was raised to the peerage by 
the title of Lord Raymond, Baron Raymond of Abbots 
Langley in the county of Hertford, being the third Chief 
Justice of the King’s Bench who had received a similar 
honour.+ 

We know from contemporary testimony that he was much 
admired and respected as head of the Common Law; but we 
have now very slender means of estimating his merits. 
Although he continued the Reporter of the Court of King’s 


* 2 Lord Raymond, 1381. 

+ Coke, Hale, and many others, are still called Lords; but Jeffreys and 
Parker were the only preceding Chief Justices who had been ennobled, and 
doubts had been entertained whether a peer could sit as a common law judge. 

“1730(1), Jan. 21. Then Sir Robert Raymond, Kt., Ld. Ch. J. of His 
Majesty’s Court of King’s Bench, being, by letters patent, dated 15 die Januarii 
1730. Annoq. regni Georgii Secundi Regis Quarto, created Lord Raymond, 
Baron of Abbots Langley, in the county of Hertford, was, in his robes, intro- 
duced, between the Lord De Lawarr and the Lord Bingley, also in their robes ; 
the Gentleman Usher of the Black Rod, Garter King of Arms, the Deputy 
Earl Marshal of England, and the Lord Great Chamberlain, preceding. His 
Lordship presented his patent to the Lord Chancellor, on his knee, at the wool- 
sack ; who delivered it to the clerk; and the same was read at the table. His 
Lordship’s writ of summons was also read,” &c. He then took the oaths, and was 

“ placed on the lower end of the Barons’ bench.”—23 Lords’ Journals, 591, 592. 


(0 ype 


197 


CHAP. 
XXVI. 





A.D. 1725. 
He is made 
Chief Jus- 
tice of the 
King’s 
Bench. 


He is 
raised to 
the peer- 
age. 
Jan. 14. 
1731, 


198 


CHAP. 
XXVI. 


His doc- 
trine that 
the pub- 
lisher of an 
obscene 
libel may 
be pro- 
cuted for a 
misde- 
meanor. 
AeDe Wl Late 


LIFE OF CHIEF JUSTICE RAYMOND. 


Bench, and he has handed down to us many of his own de- 
cisions, he does by no means the same justice to himself 
which he had done to Lord Holt. This Chief would have 
been immortalised by his judgments in the Aylesbury Case 
on parliamentary privilege, and in Coggs v. Bernard on the 
doctrine of bailments, as Lord Raymond has given them to 
the world — but, from modesty, or from want of leisure, or 
from carelessness, during the time when he himself pre- 
sided, he hardly ever mentions the Chief Justice separately, 
and generally introduces the determination of the case with 
the words ‘per Curiam,” or “the Court thought,” or “ we 
were all agreed.” Nor do the cases at that period seem to 
have been numerous or important; and, to fill up time, 
and to appear to have an air of business, the most was made 
of every matter which came on for adjudication. Thus the 
question “ whether nil debet was a good plea to an action of 
debt on a deed to recover a penalty for breach of covenant?” 
was solemnly argued four different times, in four successive 
terms, before the Court would hold the plea to be bad.* 

But I can give specimens of Lord Chief Justice Ray- 
mond’s performances which do him credit. He it was who 
first established the important doctrine that to publish an 
obscene libel is a temporal offence, subjecting the party to be 
prosecuted and punished as for a misdemeanor. ‘The 
infamous Edmund Curl, held up to eternal detestation and 
ridicule by Pope in the Duncrap, was charged by a criminal 
information in the language then used — ‘ Quod ille existens 
homo iniquus.et sceleratus ac nequiter machinans et intendens 
bonos mores subditorum hujus regni corrumpere, et eos ad 
nequitiam inducere, quendam turpem et obsccenum libellum, 
intitulatum ‘ Venus in the Cloister, or the Nun in her 
Smock,’ impie et nequiter impressit et publicavit ac imprimi 
et publicari causavit [setting out the several lewd passages in 
English] in malum exemplum,” &c. Having been tried and 
found guilty by the jury, his counsel moved in arrest of 
judgment on the ground that, however he might have been 
punishable in the Ecclesiastical Court for an offence contra 
bonos mores, this was not an offence of which the common 


* Warren v. Cousett, Tr. Term 18 Geo. I.; 2 St. Tr. 778. 


LIFE OF CHIEF JUSTICE RAYMOND. 


law could take cognisance; arguing that “ notwithstanding 
the filthy run of obscene publications in the reign of 
Charles II., there had been no prosecution for any of them 
in the temporal courts, and that whatever tends to corrupt 
the morals of the people ought to be censured only as an 
offence against religion by my Lords the Bishops.” Of this 
opinion was Mr. Justice Fortescue, who said, — 

* T own this is a great offence, but I know of no law by which 
we can punish it. Common law is common usage, and where there 
is no law there can be no transgression. At common law, drunken- 
ness and cursing and swearing were not punishable. This is but 
a general solicitation of chastity; and to make it indictable, there 
should be a breach of the peace.” 

Lord Raymond, C.J.: “I am of opinion that to publish any 
writing which reflects on religion, virtue, or morality, is an act 
which tends to disturb the civil order of society, and is a temporal 
offence. It is not merely a sin, but a crime; it is directly hurtful 
to others, as well as contrary to the soul’s health of the offender. 
Why is this court called the censor morum if we cannot punish 
that which subverts all morality ? For verbal scandal there may 
be a suit in the spiritual court, and penance may be inflicted; 
but for the injury done to the public by an obscene libel, this is 
the proper tribunal.” 

The matter stood over till another term, when, Mr. Justice 
Page having succeeded Mr. Justice Fortescue, the Judges 
were unanimous in discharging the rule to arrest the judg- 
ment, and the defendant was set in the pillory, “as,” says the 
reporter, “he well deserved.” * 

It was in Lord Raymond’s time that the law of murder 
and manslaughter was brought to the degree of precision in 
which we now find it, with allits nice distinctions and refined 
qualifications. The practice then prevailed of the jury 
finding the facts by a special verdict, and leaving the guilt or 
innocence, or the degree of guilt, of the prisoner as a question 
of law to the judges. 

One of the most interesting cases of this kind was the trial 
of Major Oneby for the murder of Mr. Gower. These two 
gentlemen, noted for their fashion and gallantries, had a 
dispute while playing at hazard in a tavern in Drury Lane, 


* Desthe 7osasml (ot. Liv 15S. 
o4 


199 


CHAP. 
XXVI. 


A.D. 1727 


He settles 
the law re- 
specting 
murder and 
man- 
slaughter. 


A.D. L 7256 
Major 
Oneby’s 
Case, 


200 


CHAP, 
XXXVI. 





A.D. 1725. 


LIFE OF CHIEF JUSTICE RAYMOND. 


and the prisoner called tlie deceased “an impertinent puppy ;” 
the deceased answered, “whoever calls me so is a rascal.” 
The prisoner then threw a bottle at the head of the deceased, 
which brushed his peruke as it passed, and beat some hair- 
powder from it. Thereupon the deceased tossed a candle at 
the prisoner without hitting him. They both drew their 
swords, but were prevented by the company from fighting, 
and again sat down to play. At the expiration of an hour 
the deceased said to the prisoner, “* We have had hot words ; 
you were the aggressor, but I think we may pass it over,” 
and at the same time offered him his hand; — to which the 
prisoner answered, ‘* No, damn you! I will have your blood.” 
The reckoning being paid, the company had all left the room 
except the prisoner, who, addressing the deceased, said, 
« Young man, come back; I have something to say to you.” 
The deceased returned. Immediately the door was closed, 
and the clashing of swords was heard. When the company 
re-entered they found that the deceased had been run through 
the body by the prisoner,—and next day he died of his 
wounds. The prisoner had received three slight wounds in 
the rencounter. The deceased on his death-bed being asked 
‘«‘ whether he received his wound ina manner called fair among 
swordsmen?” answered “I think I did.” The jury found 
that, “from the throwing of the bottle till the mortal thrust 
was given, there had been no reconciliation between the 
parties; — but whether this was murder or manslaughter, 
they prayed the advice of the Court.” The counsel were 
about two years in drawing up the special verdict which 
stated these facts; and the prosecutor took no steps to bring 
the case to a hearing, seeming rather inclined to let the pro- 
ceedings drop. But the prisoner, who had been living all the 
time gaily in Newgate, grew very confident, and feed counsel 
to move the Court to fix a day for proclaiming his innocence. 
The special verdict was twice argued; first before the four 
Judges of the King’s Bench, and then before all the twelve 
Judges of England. 

Serjeant Eyre and Mr. Lee (afterwards Chief Justice), counsel 
or the prisoner, argued that this was a case of manslaughter, for 
which the punishment was merely burning in the hand; con- 


LIFE OF CHIEF JUSTICE RAYMOND. 


tending that ‘‘ there was here no malice aforethought, which was 
necessary to murder ; the killing was on a sudden occasion ; man- 
slaughter is killing without premeditation ; tra furor brevis est ; 
and therefore, as a madman, the party is excused for what he does 
in a transport of passion: the calling the prisoner a rascal was 
what no man of honour could put up with, and this was the be- 
ginning of the quarrel; the fighting was as sudden as the re- 
proachful words: words alone would not reduce the offence to 
manslaughter, and if the prisoner had at once stabbed the de- 
ceased it might have been murder; but there was an interchange 
of blows, and the deceased himself allowed that it was a fair fight ; 
there was an interval, but no reconciliation, and the law has fixed 
no certain time when the presumption arises that the passions of 
men are cooled: besides, no one saw the beginning of the actual 
affray ; the deceased certainly struck several blows, and might have 
first struck and wounded the prisoner before the latter even drew 
his sword the second time: the law under such circumstances 
would mercifully presume provocation, which would reduce the 
case to manslaughter.” 


Lord Raymond, in a very long and most admirable judg- 
ment, pronounced the unanimous opinion of all the Judges 
that the prisoner was guilty of murder. After showing that 
the malice necessary to constitute murder was not a settled 
anger or long cherished revenge, but unprovoked deadly 
violence without provocation or excuse, he observed, — 


“ Mr. Gower did nothing that couid reasonably raise a passion 
in Major Oneby. ‘The answer of Mr. Gower, on being called an 
impertinent puppy, was not more than might have been expected, 
that ‘ whosoever called him so was a rascal.’ Major Oneby, who 
had begun the abusive language, then violently threw the glass 
bottle. After they had been restrained from fighting, and had sat 
an hour at play, the proposal of Mr. Gower ought to have ap- 
peased Major Oneby; but what was his answer? ‘No, damn 
you, I will have your blood!’ These words show his malicious 
intent even in throwing the bottle. Then followed the imperious 
and insolent command, ‘ Young man, I have something to say to 
you!’ As soon as Mr. Gower had returned, the door is shut, and 
a clashing of swords is heard, when Mr. Gower received the 
mortal wound of which he died. If the prisoner had malice against 
the deceased, though they fought after the door was shut, the in- 
terchange of blows will make no difference; for if A. has malice 
against B. and meets B. and strikes him, B. draws, A. flies to the 


201 


CHAP. 
XXVI. 





A.D: 17256 


202 


CHAP. 
XXVI. 





ASDP ys oe 


LIFE OF CHIEF JUSTICE RAYMOND. 


wall, A. kills B., it is murder. Nay, if the case had been that 
there was mutual malice, and they had met and fought, the killing 
had been murder. All the Judges are of opinion that in this 
case there was malice in the prisoner. The defence rests upon 
this being a sudden quarrel in which there was great provocation 
from the deceased; but if there was sufficient time for the blood to 
cool, and reason to get the better of the transport of passion 
before the mortal wound was given, the killing will be murder, 
and all the Judges are of opinion that the act was deliberate. It 
was not necessary that malice should be found by the jury in the 
special verdict. This is matter of law for the Court.. The jury 
may find a general verdict, either that the prisoner is guilty of 
murder or of manslaughter ; but if they find the facts specially, the 
Court is to draw the conclusion, whether there was malice, or 
whether the deed was done on a sudden transport of passion. It 
has been adjudged that if two men fall out in the morning, and 
meet and fight in the afternoon, and one of them is slain, this is 
murder, for there was time to allay the heat, and their meeting 
was of malice. Though the law of England is so far peculiarly 
favourable (I know no other law that makes such a distinction 
between murder and manslaughter) as in some instances to 
extenuate the greatest of private injuries, as the taking away a 
man’s life is, yet it must be such a passion as for the time de- 
prives him of his reasoning faculties ; for if it appears that reason 
has resumed her sway over him, if it appears that he reflects, 
deliberates and considers before he gives the fatal stroke, the 
law will no longer, under the pretext of passion, exempt him from , 
the punishment inflicted on murder. It is urged that, from the 
prisoner’s three wounds, a new and sudden quarrel might have 
arisen, in which Mr. Gower might be the aggressor; but it lies on 
the party indicted to prove this quarrel, and none such being 
found by the jury, we are not at liberty to presume that there was 
any. ‘The last fact relied upon is, that Mr. Gower on his death- 
bed allowed that the fight was fair. The answer is, that if A. 
have malice against B., and they meet and fight, though the fight 
is never so fair according to the law of arms, yet if A. kills B. it 
will be murder.” Lord Raymond then cited all the authorities on 
the subject from the earliest times in support of the doctrines he 
had laid down, and he concludes his own report of the case with 
the following ‘“ Memorandum: As soon as I had delivered 
this resolution, I desired my brothers Fortescue, Reynolds, and 
Probyn, that if they disapproved anything I had laid down, they 


LIFE OF CHIEF JUSTICE RAYMOND. 


would express their disapprobation, but they publicly declared 
that they consented in omnibus.” * 

The prisoner declared that, ‘as he hoped for mercy at the 
hands of Almighty God, he had never used the expression so 
much pressed against him, ‘J will have your blood;’” and, 
having fought with distinction in all the Duke of Marl- 
borough’s campaigns, he prayed “that he might be re- 
commended to his Majesty’s clemency for his past services 
in the cause of his country.” 

Lord Raymond: “ As to the words, seeing that they were 
sworn to, and stand in the special verdict, 1 am sorry to say your 
denial can avail you nothing ; and, we sitting here only to declare 
the law, you must apply elsewhere for mercy.” 

Mr. Justice Fortescue, the senior Puisne Judge, pro- 
nounced sentence of death. Before the day fixed for the 
execution, came news of the death of George I. at Osnaburgh, 
and great interest was made with the new Sovereign to begin 
his reign with an act of grace by pardoning Major Oneby ; 
but George II. declared that, “the Judges having unani- 
mously adjudged the prisoner guilty of murder, the law should 
take its course.” Nevertheless, Major Oneby disappointed the 
executioner by opening an artery in his arm, so that he bled 
to death, the night before the day when he was to be hanged 
at Tyburnf, and he was buried in a highway with a stake 
driven through his body. Although he had been a gal- 
lant soldier, he was a man of very bad moral character, 
having lived, since his regiment was reduced at the Peace of 
Utrecht, as a professional gamester, and having before killed 
several antagonists in duels brought on by his extreme 
arrogance. { 

The next trial for murder which I have to mention arose 
out of an address to the public by THomson, in his WINTER, 

* 2 Lord Raymond, 1500. 

+ One contemporaneous account says, — “ About seven in the morning he 
said faintly to his footman, who came into the room, ‘ Who is that, Philip?’ 
A gentleman, coming to his bed-side soon after, called * Major! Major!’ but, 
hearing no answer, drew open the curtains and found him weltering in his 
blood and just expiring. Mr. Green, a neighbouring surgeon, was instantly 
sent for; but before he came the major was dead. He had made so deep a 
wound in his wrist with a penknife that he bled to death.” 


¢ 17 St. Tr. 30—74.; 2 Str. 766.; 2 Ld. Raym. 1485.; 1 Burr. 178.; 
Select Trials at the Old Bailey, ii. 153. 


203 


CHAP. 
XXVI. 


A.D. 17250 


A.D. 1730. 


204 


CHAP. 
XXVI. 


A.D. 17380. 


Liability 

of a gaoler 
for murder 
by neglect. 


LIFE OF CHIEF JUSTICE RAYMOND. 


in favour of the miserable victims then confined in our gaols. 
This was caused by the death ofa prisoner in the Fleet of the 
name of Arne, who had been confined for debt, and had expired 
under circumstances the most heartrending. The poet, after 
a compliment to the humanity of some humane individuals 
who, “touched with human woe,” had searched ‘into the 
horrors of the gloomy gaol,” thus proceeds : — 


- . . “ Where sickness pines, where thirst and hunger burn, 
And poor misfortune feels the lash of vice. 
O great design ! if executed well, 
With patient care, and wisdom-temper’d zeal. 
Ye sons of mercy ! yet resume the search ; 
Drag forth the legal monsters into light, 
Wrench from their hands oppression’s iron rod, 
And bid the cruel feel the pains they give.” 


In consequence, the affair was taken up by the House of 
Commons, who, after an investigation by a select committee, 
addressed the Crown, praying that John Huggins, the 
warden, and James Barnes, the deputy warden, of the Fleet, 
should be prosecuted by the Attorney General for the murder 
of Edward Arne. 

The trial came on at the Old Bailey before Mr. Justice 
Page, when the jury returned a special verdict, finding “ that 
while Huggins was warden, and Barnes deputy warden, of 
the Fleet, Arne was committed to that prison; that Barnes 
confined him in a cold, damp, unwholesome cell over the 
common sewer, knowing the same to be dangerous to life, 
and kept him there forty days, absque solamine ignis, necnon 
siné aliqua matula, scaphis, vel aliquo alio hujusmodi 
utensili* ; that Arne died from this imprisonment; and that 
during his detention in the cell Huggins was once present, 
saw him under the duress of the said imprisonment, and 
turned away without doing anything to relieve him.” After 
the special verdict had been twice argued before the Judges, 
Lord Raymond delivered judgment : — 

“In this case two questions arise: —1. What crime the facts 
found upon Barnes in the special verdict will amount to? 2. 
Whether the prisoner Huggins is guilty of the same offence with 
Barnes? As to the first question, it is very plain that the facts 
found upon Barnes do amount to murder in him. Murder may be 


* All indictments and special verdicts were still in Latin. 


LIFE OF CHIEF JUSTICE RAYMOND. 


committed without any stroke. The law has not confined the 
offence to any particular circumstances or manner of killing ; 
there are as many ways to commit murder as to destroy man. 
Murder is where a man kills another of malice, so he dies within a 
year and a day; and malice may be either expressed or implied. 
Upon the facts found there is plain malice arising in construction 
of law. Ifa prisoner by duress of the gaoler comes to an untimely 
end, it is murder, without any actual strokes or wounds. The law 
implies malice in such a case, because the gaoler acts knowingly in 
breach of his duty. A prisoner is not to be punished in gaol, 
but to be kept safely. The nature of the act is such as that it 
must apparently do harm. It is also cruel as it is committed upon 
a person who cannot help himself. So the charge of murder 
against Barnes is fully established. 3. The next question is, 
whether Huggins be guilty of the same offence; and the Judges 
are unanimously of opinion that upon the facts found he is neither 
guilty of murder nor of manslaughter. As warden, he shall 
answer for the acts of his deputy civilly, but not criminally. It no 
where appears in the special verdict, that he ever commanded or 
directed, or consented to, this duress of imprisonment which was 
the cause of Arne’s death. The verdict finds that once the pri- 
soner Huggins was present, and saw Arne under the duress of the 
imprisonment, and turned away* ; but it by no means follows 
that he knew the man to be under this duress. We are told by 
the counsel for the Crown that if he saw the man under this duress 
he must know it, and it was his duty to deliver him. But we 
cannot take things by inference in this manner. The seeing him 
does not imply a knowledge of the several facts which make the 
duress, which consists of several ingredients and circumstances 
not to be discovered upon sight. If the evidence would have 
warranted it, the jury should have found that he knew and that he 
consented to what Barnes had done. Malice is an inference of 
law for the Court, but consent is a fact to be found by the jury. 
Then if the verdict be defective, we are pressed for a new trial ; 
but, without determining the question whether after a special verdict 
in felony there may be a venire de novo, we are all of opinion that 
this verdict is not so uncertain as that judgment cannot be given 
upon it. The facts found are positively found ; but, taken together, 
are not sufficient to make Huggins guilty of murder, and therefore 
he must be adjudged Nor GuiLty.” t 


* « Sub duritie imprisonamenti preedicti et se avertit.” 
t 17 St. Tr. 297—382.; 2 Lord Raym, 1574. 


205 


CHAP. 
XXXVI. 





As Ds E7808 


206 


CHAP: 
XXVI. 


A.Ded7S0. 


LIFE OF CHIEF JUSTICE RAYMOND. 


There is one other case of the same kind before Lord 
Raymond, which is worthy of notice. In the popular rage 
then prevailing against gaolers, Thomas Bambridge, a former 
warden of the Fleet, was indicted for the murder of Robert 
Castell, on the ground that he had confined him in a house 
in which there was a man lying ill of the small-pox, a disease 
which Castell had not had, and which he caught and died of. 
The indictment coming on for trial at the Old Bailey before 
Mr. Justice Page, Bambridge was easily acquitted on the 
evidence for the prosecution; but, instigated by a mobbish 
confederation, who subscribed large sums of money to gain 
their object, Mrs. Castell, the widow, sued out an “ appeal of 
murder” against Bambridge, and likewise against Corbett, 
his deputy, who, in case of need, was to have been called as 
his principal witness. The appellees, instead of waging 
battle and defending themselves by their champions in the 
listed field, as they might have done, put themselves upon 
the country, and they were tried by Lord Raymond and a 
jury of London merchants. ‘The prosecution was conducted 
with great zeal by Mr. Reeves, afterwards Chief Justice of 
the Common Pleas, and Mr. Lee, afterwards Chief Justice 
of the King’s Bench; and they contrived, by dextrous ma- 
nagement, to make out a sort of primd facie case. The 
appellees were ably defended by Serjeant Darnell and Serjeant 
Eyre, who both addressed the jury in their favour in long 
and eloquent speeches*, and, by calling witnesses, they made 
out a clear defence. Lord Raymond, in summing up the 
case to the jury, said, — 

“ This appeal by Mary Castell, for the death of her husband, is 
grounded on the doctrine that as the law has particular guards 
and privileges in justifying the right of a gaoler in detaining 
prisoners in safe custody, so on the other hand he must treat them 
humanely and put them into such places as do not prejudice their 
limbs and lives ; for if they are put into such places and they die, 
this is murder. If a gaoler brought bodies that were infectious 
into a room, so that a prisoner should catch a mortal distemper, or 

* Tt was only upon indictments in the name of the King that, at common 
law, prisoners were deprived of the assistance of counsel in capital cases. If the 


proceeding was by appeal, the trial was conducted as if it had been a civil 
action. 


LIFE OF CHIEF JUSTICE RAYMOND. 


put him into irons by which he should die, the legal result is the 
same. Likewise, if a gaoler will take persons that have not a 
distemper, and carry them to a room against their consent after 
notice given to him that such a distemper is there, it is at his 
peril. In the present case, gentlemen, these circumstances must 
be concurrent, that the deceased was carried to the house against 
his will; that the distemper was in the house ; that the appellees 
had notice of the distemper being there; that, notwithstanding, 
he was carried and kept there, and that thereby he caught the 
distemper which was the occasion of his death.” 

He then went over the whole of the evidence, and showed 
that, with respect to Corbett, there was nothing to prove 
any knowledge of the distemper being in the house; and, 
with respect to Bambridge, that Castell had gone with him 
to the house voluntarily, and had made no complaint while 
there till he caught the infection. The jury found both 
appellees Nor GuiLtTy; but, from the popular prejudice 
avainst them, they had been in considerable jeopardy.* 

I have now to present to the reader Lord Raymond sitting 
as judge on the trial of an information for libel. His autho- 
rity has been mainly relied upon to support the doctrine 
that, in such a proceeding, the truth of the assertion of fact 
alleged to be libellous is wholly immaterial, and that libel or 
no libel is a pure question of law for the Court. The leading 
opposition journal of that day was the CRAFTSMAN, to which 
Pulteney, Bolingbroke, and the other antagonists of Sir Ro- 
bert Walpole, were constant contributors. In No. 235., 
dated 2d of January, 1730-1, there appeared a letter which 
purported to come from a correspondent at the Hague, but 
which in reality was written by Bolingbroke in London, 
most bitterly inveighing against the foreign policy of the 
Government, and imputing very disreputable conduct to 
ministers in their negotiations with foreign states. This was 
particularly obnoxious to King George II., who was then 
engaged in deep political intrigues, with the view of adding 


* 17 St. Tr. 383—462. ; 2 Str. 854. Notwithstanding this flagrant abuse 
of the proceeding of appeal of murder, it continued till the year 1819, when it 
was abolished upon Abraham Thornton throwing down his gauntlet on the 
floor of the Court of King’s Bench, and demanding trial by battle, ut vidi. 
See 59 Geo. III. c. 46, 


207 


CHAP. 
XXVI. 


A.D. 1730, 


Lord Ray- 
mond on 


the law of 
libel. 


208 


CHAP, 
XXVI. 


A.D. 1731. 


LIFE OF CHIEF JUSTICE RAYMOND. 


afew acres to the electorate of Hanover; and, to please 
him, Sir Philip Yorke, the Attorney General, prosecuted 
Francklin, the printer and publisher, who was a bookseller in 
Fleet Street. “ At the trial, a vast crowd of spectators of 
all ranks and conditions were assembled, and the court was 
crowded with noblemen and gentlemen. It was remarkable 
that Mr. Pulteney, presumed to be one of the patrons of the 
prosecuted paper, was loudly huzzaed by the populace in 
Westminster Hall, which shows the fondness of the people 
of England for the freedom of the press.” * 

The Attorney General contented himself with proving a 
preliminary averment in the information respecting the ex- 
istence of a treaty, and the purchase in the defendant’s shop 
of a copy of the newspaper containing the Hague letter. 
Mr. Fazakerley, on the other side, contended that the case for 
the Crown was defective, because no evidence had been 
given to falsify the statements in the letter, which he could 
prove were true, and that, in reality, the jury ought to find 
that the letter was no libel, as it did not in any degree 
reflect upon the King, and only made fair observations on 
the conduct of his ministers : — 

Lord Raymond, C. J.: “ My opinion is, that it is not material 
whether the facts charged in a libel be true or false, if the prose- 
cution is by information or indictment. There are legal remedies 
provided for every one who is injured, without scandalising others. 
Above all, the character of a magistrate, minister of state, or other 
public person, is to be protected. The law reckons it a greater 
offence when the libel is pointed at persons in a public capacity, as 
it is a reproach to the King to employ corrupt and incapable per- 
sons. Such charges tend to sow sedition and to disturb the peace 
of the kingdom. ‘Therefore I shall allow no evidence to prove 
that the matters charged in the libel are true. If you think I am 
wrong, apply to the Court, and they will do you justice.” In sum- 
ming up he said, “There are here three things to be considered, 
two of them being for the jury, and the third for the Court. 
1. Did the defendant, Mr. Francklin, publish this Craftsman or 
not? 2. Do the expressions in the letter allude to the King and 
his ministers according to the innuendoes ? These are matters of 
fact for your consideration of which you are the proper judges, and 


* Boyer’s Political State of Europe, 1731. 


LIFE OF CHIEF JUSTICE RAYMOND. 


if you think in the affirmative on both questions, you will find a 
verdict of guilty. There is a third question — whether these de- 
famatory expressions amount toa libel or not? This belongs to the 
office of the Court, for it is matter of law, of which the Court are 
the only proper judges. We are not to invade each other’s pro- 
vinces, as has been suggested of late by those who ought to have 
known better.” 

The jury having found the defendant guilty of publishing 
the libel, he was sentenced to a year’s imprisonment and to 
pay a fine of 1002* 

Lord Raymond’s authority as a judge was so high that his 
decisions at Nisi Prius, when sitting all alone trying causes 
by jury, were reported, and settle many important points 
which, till then, were doubtful; as, that “a husband is not 
liable to be sued for necessaries supplied to his wife if she 
has eloped from him with a paramour;”f that, “if goods 
which are not necessaries are supplied to a minor, he is bound 
by a promise made after coming of age to pay for them;”t 
that, “if a man render services for which he would otherwise 
be entitled to be paid, he cannot maintain an action for them 
if he rendered them to ingratiate himself in hopes of a legacy, 
although the party who receives them dies without leaving 
him anything ;”§ and that, “‘ notwithstanding the old maxim, 
pater est quem nuptie demonstrant, the child of a married 
woman may be proved to be illegitimate by evidence that 
her husband could not have been the father of the child, 
although he was living within the four seas.” | 

Lord Raymond was sworn a member of the Privy Council 
when made Chief of the King’s Bench; and, as often as 
George I. or George II. went abroad, he was constituted one 
of the Lords Justices for the government of the kingdom in 
the King’s absence: but in these capacities he confined him- 


* 17 St. ‘Tr. 625--676. He wasmore lucky another time, when his acquittal 
gave rise to Pulteney’s ballad—* Sir Philip well knows that his innuendoes,” &e. 
(See post, in Life of Lord Mansfield.) Looking to these exploded heresies, which 
then passed for gospel, it is curious to conjecture whether any, and which, of 
the doctrines which are now reverentially chérished will be anathematized by 
posterity. 

+ Morris v. Martin, 1 Str. 647.; Manwaring v. Sands, 2 Str. 706. 

¢ Southerton v. Whitlock, 2 Str. 690. 

§ Osborn v. Guy's Hospital, 2 Str. 728. 

|| Pendrell v. Pendrell, 2 Str. 924, 


VOL. II. Me 


209 


CHAP. 
XXVI. 


A.D. 1725 
—1731. 


Lord Ray- 
mond’s 
Nisi Prius 
decisions. 


Lord Ray- 
mond’s ab- 
stinence 
from poli- 
tiles. 


210 


CHAP. 
XXVI. 


av. 1731. 
His oppo- 
sition to 
the bill for 
conducting 
law pro- 
ceedings in 
English. 


His death. 


LIFE OF CHIEF JUSTICE RAYMOND. 


self merely to going through formalities. He would take no 
active part in politics; and, although he steadily voted for 
Sir Robert Walpole’s government, he never spoke upon any 
party question. 

The only debate in which I can find that he ever mixed 
in the House of Lords was on the bill enacting that all 
legal proceedings should be conducted in the English lan- 
guage. Iam sorry to say that he opposed it as a dangerous 
innovation, thinking that barbarous Latin should still be 
used to express a criminal charge in an indictment, the mean- 
ing of it being quite unintelligible to the party accused, 
whether illiterate or a good classical scholar. Lord Raymond 
ridiculed the supposed necessity for records being in the 
vernacular tongue, by observing that,“ upon this principle, 
in an action to be tried at Pembroke or Caernarvon, the 
declaration and plea ought to be in Welsh.” The Duke of 
Argyle courteously answered, that ‘he was glad to perceive 
that the noble and learned lord, perhaps as wise and learned 
as any that ever sat in that House, had nothing to bring 
forward against the bill but a joke.” * 

I have been able to discover very little of Lord Raymond 
in private life. He seems to have associated only with law- 
yers. He resided chiefly in Red Lion Square, then the seat 
of the legal aristocracyt; and he had a country-house in 
Hertfordshire, where he bought a large estate. After a short: 
illness, he died, in Red Lion Square, on the 15th of April, 
1733, in the 6lst year of his age; and he was buried at 
Abbots Langley. 


At the east end of the parish church is to be seen a handsome 


* 8 Parl. Hist. 861. In palliation of Lord Raymond’s prejudice in favour 
of ancient absurdities, I may observe that I have heard judges in my own time 
lament the change then introduced, on the ground that, although it might be 
material for the parties, both in civil and criminal proceedings, to have some 
notion of what is going on, the use of the law Latin prevented the attorneys’ 
clerks from being so illiterate as they have since become. I may likewise 
mention the ruling of a Welsh judge about thirty years ago, on a trial for 
murder, “ that the indictment and the evidence must not be interpreted into 
Welsh for the information of the prisoner, as that would be contrary to the 
statute of George II. which requires all proceedings to be carried on in the 
English language.” 

+ Such a change had been produced by the lapse of a century, that, to denote 
the inferiority of the class now to be found there, I have heard the comparison, 
“as proud as a judge’s wife at a rout in Red Lion Square.” 


LIFE OF CHIEF- JUSTICE RAYMOND. 


marble monument of Lord Chief Justice Raymond, who is 
represented in a sitting posture, leaning upon a pile of books: 
in his right hand he holds a scroll, upon which is written 
* Magna Charta;” his left is stretched out to receive a 
coronet, presented to him by a child; on his right hand sits 
a lady, in a mournful posture, holding over him a medallion, 
upon which is the head of a youth, carved in relief. 
Under the shield containing his arms there is the follow- 
“ing inscription: — 
“OBLATOS HONORES FILIL GRATIA ACCIPIT JUDEX Z2QUISSIMUS. 
M. S. 
Honoratissimi viri Roberti Raymond, 
Baronis de Abbot’s Langley ; 
Cujus meritis raro exemplo respondit Fortuna; 
honesto enim loco natus, 
literisque humanioribus prima «tate excultus, 
universam juris scientiam, cui sese addixerat, 
tanta ingenii facilitate complexus est, 
ut inter preecipuos causarum patronos 
brevi tempore haberetur ; 
in quo munere exequendo, 
cum pari fide solertia atque gravitate 
indies magis magisque inclaruisset, 
ad diversos juris honores gradatim ascendit ; 
donec augustissimorum principum Georgii I. et I]. jussu 
Capitalis Angliz Justiciarius constitutus, 
mox, ut uberiorem virtutis sue fructum caperet, 


in amplissimum proeerum ordinem 
Cooptatus est.” 


He left behind him one son, by his wife, who was a daugh- 
ter of Sir Edward Northey, Attorney General to Charles IT. 

The second Lord Raymond was not very distinguished, 
and I do not find him noticed except in the proceedings 
against Astley and Cave for printing an account of Lord 
Lovat’s trial — when he was chairman of the committee to 
whom the matter was referred, and moved their commitment. 
He was married to a daughter of Lord Viscount Blundell, 
of the kingdom of Ireland; but, dying without issue, in the 
year 1756, the title became extinct.* 

The Chief Justice’s REportst are the great glory of the 


* It is a curious fact that Lord Kenyon is the first ennobled Chief Justice of 
the King’s Bench of whom there is a descendant now a member of the House 
of Lords. 

+ These Reports were first printed in 1743, and a second edition came out 
in 1745. The last edition, by Mr. Justice Bayley, with valuable notes, ap- 
peared in 1790, From the multiplicity of modern Reports, the old ones will 
probably never be reprinted, 


pee 


211 


CHAP. 
XXVI. 





A.v. 1733. 
His monu- 
ment, 


His epi- 
taph. 


212 


CHAP. 
XXVI. 


A.D. 1733. 


Panegyric 
upon him. 


Lorp 
Harp- 
WICKE 
Chief Jus- 
tice of the 
King’s 
Bench. 


LIFE OF CHIEF JUSTICE HARDWICKE. 


family, and have obtained his introduction into Horace Wal- 
pole’s Catalogue of Royal and Noble Authors, who describes 
him as “one of those many eminent men who have risen to 
the peerage from the profession of the law.”* 

The warmest eulogium pronounced upon Lord Raymond 
is in the dedication to him of the Reports of Chief Baron 
Comyns. The eulogist, after describing the splendour of his 
reputation as supreme magistrate of the common law, adds — 
“ The difficulty of succeeding a person so truly eminent as 
your Lordship’s noble and learned predecessor was too ap- 
parent to all the world; but I may venture to add, with as 
much truth, that his Majesty (whose great regard and paternal 
affection for his subjects can appear in nothing more than so 
worthily filling the seats of justice) never gratified them in 
a more sensible manner than when he conferred that honour 
on your Lordship; for, however excellent great abilities and 
profound science are in themselves, however necessary to 
persons intrusted with the public sword of justice, they only 
become truly valuable to the rest of mankind when governed 
and directed by the rules of honour, virtue, and integrity.” ¢ 





On the death of Lord Raymond, the office of Chief Justice 
of the King’s Bench remained vacant for several months. 
About the same time, Lord King, from severe indisposition, 
was obliged to resign the great seal, and the arrangements 
which, in consequence, became necessary caused great per- 
plexity. At last it was settled that Mr. Talbot, the Solicitor 
General, should be Lord Chancellor; and, in Michaelmas 
Term, Sir Puirip YorKe, the Attorney, took his seat as 
Chief Justice of the King’s Bench. 

I ought now to describe his wonderful course, from the time 
when being an attorney’s gratis clerk he was sent to buy 
cabbages at the greengrocer’s and oysters at the fishmonger’s 
for an imperious mistress, till he became Lord High Chan- 
cellor, an earl, and the renowned framer of our equitable 
code; but I have already, to the best of my ability, narrated 
his adventures, and drawn his character; and, upon reflection, 


* Works, vol. i. p. 445. 
t See Chalmers’s Biographical Dictionary, “ Lord Raymond;” Kent’s 
Commentaries, 488. 


LIFE OF CHIEF JUSTICE LEE. 


I see no reason to retract or to qualify any of the praise or 
of the censure which I had ventured to mete out to him.* 

It was thought that he would end his days as a common 
law judge, like Hale, Holt, and many of his most illustrious 
predecessors ; but, after he had presided in the King’s Bench. 
little more than two years, Lord Talbot died suddenly, while 
still a young man; and Lord Hardwicke, being transferred to 
the woolsack, fulfilled his illustrious destiny. 





Much difficulty was experienced in fixing upon a successor 
to him in the Court of King’s Bench. From the earliest 
times, in each of the superior common law courts, a CHIEF 
had been constituted, with pwzsnies under him; for, with a 
perfect equality of rank among all the judges, a constant 
struggle would be carried on among them for ascendancy, 
the bar could not be duly kept in order, and the business 
would be thrown into confusion. But the full advantage 
of this arrangement can only be obtained when the Chief 
is superior to his brethren in talents and reputation. The 
condition of the court is very unseemly and inconvenient 
when the collar of §.S. is worn by one who feels that he 
does not deserve it, or who is considered by others inferior 
in authority to those who sit undecorated, by his side. 

Lord Hardwicke, during the chancellorship of Lord Talbot, 
having been eclipsed in the House of Lords by the superior 
brilliancy of that extraordinary man, was supposed to be 
anxious to avoid the annoyance of having another law lord 
as a rival. Some applied to him the magniloquent comparison 
that he would 


«“ Bear, like the Turk, no brother near his throne ; ” 


and others, in homely but expressive language, said “ he was 
resolved to rule the roast.” + He therefore cast his mantle on 


* Lives of the Chancellors, vol. v. ch. exxix—exxxvil. Since the first edi- 
tion of my book, a Life of Lord Hardwicke, by Mr. Harris, has been published, 
in which complaint is made of me as often as I have ventured to doubt the pro- 
priety of anything that our hero ever did, said, wrote, or thought. But the 
«faultless monster” whom this author describes bears a very partial resemblance 
to Lord Hardwicke. 

+ Lond. Mag. 1737. He actually did rule the roast more than twenty years, 
sitting during all that time the only law lord in the House of Peers. 


b sat) 


213 


CHAP, 
XXVI. 


Feb. 1737. 


Difficulty 
in filling up 
the office 
on his pro- 
motion to 
be Chan- 
cellor. 


214 


CHAP. 
XXVI. 


Sir W1- 


LIAM LEE 
Chief Jus- 
tice of the 
King’s 
Bench, 


His birth. 


LIFE OF CHIEF JUSTICE LEE, 


* 


Sir Wituram Lex, who had been one of his puisnies, who was 
of decent character and respectable qualifications, who had no 
pretensions to a peerage, and who could never in any way be 
formidable to a chancellor. Although this selection was sus- 
pected to proceed from selfish motives, there is some doubt 
whether, from the peculiar state of the bar at that time, a 
better could have been made: for there were serious objec- 
tions to Willes, the Attorney General, on account of his pro- 
fligate private life; and Ryder, the Solicitor General, had as 
yet very little weight or legal reputation. The honours of 
the profession may be considered a lottery; or if they are 
supposed to be played for, — in the game there is more of luck 
than of skill. At times, we see a superfluity of men well 
qualified for high legal offices, while years roll on without a 
vacancy. At times, vacancies inopportunely arise when 
they cannot be reputably filled up. Sir William Lee had 
never dreamed of being more than a puisne, till the hour when 
it was announced to him that he was CHIEF JUSTICE OF 
ENGLAND. 

He and his brother Sir George, like the two Scotts, Lord 
Eldon and Lord Stowell, had the rare felicity of presiding at 
the same time over the highest common law and civil law 
courts in this country; for while Sir William Lee was Chief 
Justice of England, Sir George Lee presided as Dean of 
the Arches and Judge of the Prerogative Court of Canter- 
bury. They were the sons of Sir Thomas Lee, of Hartwell, 
in the county of Bucks, Bart. 

William, the younger, who was born in the year of the 
Revolution (1688), used often to say that, “as he came in 
with King William, he was bound to be a good Whig.” He 
might have been called “ Single-joke Lee,” for, although 
highly honourable and respectable, he was the dullest of the 
dull throughout the whole course of his life; and this oft- 
repeated pleasantry, with which he was in the habit of intro- 
ducing his opinion on any controverted question of politics, 
was the only one which he was ever known to attempt or to 
relish.* Great astonishment was expressed by most of those 


* According to this instance, Pope’s line ought to have been — 
“ For gentle dullness ever loves one joke.” 


LIFE OF CHIEF JUSTICE LEE. 


who knew him at college when it was announced that he was 
destined for the profession of the law, and predictions were 
uttered that he would starve in it. But an old gentleman who 
had been his tutor, and who knew what was in him, said, “ I 
shall not—but you who are young may—live to see him Chief 
Justice of England, for to plodding and perseverance nothing 
is impossible.” The dull and despised William Lee did plod, 
did persevere, and did become Chief Justice of England. 

In preparing for the bar, he mainly devoted himself to 
special pleading, in which he took great delight. He never 
even had attempted to cross the “Ass’s Bridge,” so that he 
. could not tell whether this would have proved an insuperable 
obstacle to his mathematical progress ; and, though well drilled 
in the rules of prosody, he utterly and for ever renounced 
classics as soon as he had taken his bachelor’s degree at Ox- 
ford. Of modern literature he had not the slightest tincture. 
He felt no regret that he had lost an opportunity of being 
presented to Dryden. Instead of writing a paper in the 
SPECTATOR, like his contemporary and fellow law-student, 
Mr. Philip Yorke, he declared’ that he had never got further 
than the second number, where he was shocked “by the 
description of the idle Templar, who read Aristotle and 
Longinus, who knew the argument of each of the orations 
of Demosthenes and Tully, but not one case in the reports 
of our own courts, and whose hour of business was the 
time of the play, when, crossing Russell Court and having 
his periwig powdered at the barber’s, he took his place in 
the pit of Drury Lane Theatre, exciting the ambition of 
the actors to please him.” It cost Lee no effort of self- 
denial to abjure such unprofitable pursuits. As it were in 
the gratification of a natural instinct, he took to the Liber 
Placitandi ; and, to fix it in his memory, he copied it over 
three times with his own hand. He luxuriated likewise in 
Coke’s Entries; and in perusing Saunders’s Reports he loved 
more to dwell upon the declarations, pleas, and replications, 
as there set out at full length, than the subsequent epigram- 
matic statements of the arguments and the decision which 
have gained to the author the title of “the Terence of Re- 


porters.” The fiction of “ giving colour,” which had driven 
es 


215 


CHAP. 
XXVI. 


—<- 


A.D. 1700 
—1710. 
Prophecy 
as to the 
effect of 
plodding 
and perse-~ 
verance. 





His passion 
for special 
pleading. 


216 


CHAP 
XXXVI. 


A.D, 1718. 
His victory 
in a GREAT 
SETTLE- 
MENT CASE, 


¢ 


a.p. 1730, 
He is 
counsel in 
appeal of 
murder. 


LIFE OF CHIEF JUSTICE LEE. 


some very scrupulous pleaders from the bar, particularly 
charmed him; and, considering the rules of law to be founded 
either on the eternal fitness of things or on the revealed will 
of God, (a question which, it appears from his Diary, he was 
accustomed to dispute,) there was no dexterity sanctioned by 
these rules which he did not deem justifiable. At the same 
time he was an amiable, worthy man, — 


. and if astute in aught, 
The love he had to pleading was in fault.” 


We need not wonder that his fame went forth among the 
attorneys, and that soon after he was called to the bar he was 
in considerable practice — as a fabricator of sham pleas, and 
an arguer of special demurrers. His name appears frequently 
in the Reports as counsel in special pleading cases; but, 
though “ to the manner born,” I must confess my inability to 
explain these mysteries to the profane. 

There are only two cases on other subjects in which he is 
recorded as having been counsel while he remained at the 
bar. The first is Rex vy. Ivinghoe, which came from the 
quarter sessions of his native county, and in which the 
question was, ‘“ whether a settlement was gained by a pauper 
who had been hired for a year by one master, and, with the 
consent of his first master, served part of the year under 
another?” This was quite adapted to Lee’s capacity, and hear- 
gued it as elaborately as if the rights and liberties of English- 
men had depended upon it. He succeeded, and was probably 
as much pleased with himself as Erskine on the acquittal of 
Hardy and Horne Tooke, for he induced that great sessions 
lawyer Lord Chief Justice Pratt to say, “ If I lend my ser- 
vant to a neighbour for a week or any longer time, and he 
goes accordingly and does such work as my neighbour sets 
him about, yet all this while he is in my service, and may 
reasonably be said to be doing my business. Therefore, I 
take this to be a service for the whole year under the first 
contract, and the settlement is at Ivinghoe.” * 

Again, when the famous appeal of murder was sued out 
against Bambridge and Corbett, the mode of proceeding being 
almost obsolete, Lee, from his black-letter reputation, was 


* 1 Strange, 90. 


LIFE OF CHIEF JUSTICE LEE. 


employed to conduct it. The-trial coming on, he addressed 
the jury at great length, and exerted himself very unscrupu- 
lously to obtain a conviction; but he met with a signal de- 
feat, which made him vow that in future he would have 
nothing to do with facts, and would stick to law alone.* 

When in his 40th year — an age when ambition is said to 
rage with greatest fury — he was much annoyed by an offer 
to be brought into the House of Commons, by the interest of 
his family, for Chipping Wycombe, in Bucks. He long 
strenuously refused, but, being told that if he persisted in 
doing so the seat would be carried by the Tories, he suc- 
cumbed, observing that, “ as he came in with King William, 
he was bound to be a good Whig.” However, we in vain 
look to see hisname in the Parliamentary History ; for while 
his brother George was a frequent and excellent speaker, and 
so became one of the leaders of the Leicester House party, 
no human power would have induced William to make a 
speech, unless he might wear his wig and gown and hold a 
brief in his hand. Although he voted steadily with the 
Government, he would never, even in the lobby or in private 
society, give any better reason for the line he teok than that 
“he came in with King William, and he was bound to be a 
good Whig.” 

The next offer which was made to him he accepted without 
hesitation, and he became a Puisne Judge of the King’s 
Bench, — reaching the summit of his ambition, and better 
pleased than he could conceive himself to be by winning a 
battle equal to BLENHEIM, or writing a poem more esteemed 
than Parapise Lost. It was supposed, and said, that he 
had been promoted because he had so steadily proclaimed and 
proved himself to be “a good Whig;” but politics had 
nothing to do with the appointment. Sir Robert Raymond, 
then Chief Justice of the King’s Bench, complained bitterly 
of the insufficiency of his pwisnies, particularly in the know- 
ledge of special pleading, of which he himself, notwithstand- 
ing his genera! juridical acquirements, was by no means 
master; and he made a particular application to Lord Chan- 
cellor King, that a vacancy which then occurred in the court 

* 17 St. Tr. 401. 


217 


CHAP. 
XXVI. 


A.D. 1728, 


His dislike 
of the 
House of 
Commons, 


He is made 
a Puisne 
Judge. 


218 


CHAP. 
XXXVI. 


4.D. 1730. | 


His inti- 
macy with 
Lord 
Hard- 
wicke, 


He is made 
Chief Jus- 
tice of 
England. 


LIFE OF CHIEF JUSTICE LEE. 


might be filled up by Mr. Lee, who was more eminent in 
this line than any other man in the profession. Being coifed, 
sworn in, and knighted, the new Judge took his seat in the 
Court of King’s Bench on the 15th of June, 1730. 

He remained a Puisne Justice for seven years, under Lord 
Chief Justice Raymond and Lord Chief Justice Hardwicke, 
and was found exceedingly useful to them and to the public. 
Having concentrated all the energies of a mind naturally 
strong, and quickened by dialectical exercise, on one depart- 
ment of one science, he had attained in it to an unexampled 
skill. Moreover, its rules and analogies having a very ex- 
tensive influence over the whole body of our law and pro- 
cedure, few points arose in the course of a term on which his 
opinion was not valuable. He gave it with much modesty 
and discretion ; not seeking to expose the ignorance of his 
brethren, or to parade his own knowledge, but setting the 
Chief Justice right by a whisper, and inducing a by-stander 
to believe, when the judgment was given, that they had all 
perceived how it must be from the first, —-insomuch that he 
was likened, by the knowing, to the helm which keeps the 
ship in her right course, without itself attracting any notice. 

Sir William Lee particularly gained the favour of Lord 
Hardwicke, and is called by Horace Walpole and other con- 
temporary writers his “creature,” his “tool,” his “ de- 
pendant,” and his “shadow.” Their great intimacy appears 
from Lord Hardwicke having employed Lee to assist him in 
bargaining for the estate in Gloucestershire from which he 
took his title, and to act as a trustee in his family settle- 
ments. * 

Lord Hardwicke, on becoming Chancellor, was severely 
blamed for rewarding such services by promoting a man well 
qualified for the subordinate station which he occupied, but 
wholly: unfit to be Chief Justice of England,—who, in addition 
to being a good special pleader, should be an enlightened 
jurist, experienced in the ways of the world, well qualified to 
address a legislative assembly, a scholar, and a gentleman. 

No one can blame Sir William Lee for accepting the 
honour which was thrust upon him; and, public expectation 


* Harris’s Life of Lord Hardwicke, i. 188. 


LIFE OF CHIEF JUSTICE LEE. 


being low, it was generally allowed that he acquitted him- 
self very reputably. His intentions were ever most pure 
and upright; his temper was well disciplined; his manners 
were bland; and, although it could not be said that he took 
an enlarged view of any subject, or did much to improve 
our code, his decisions between the parties litigating before 
him were substantially just. 

On Monday, the 13th of June, being the fourth day of 
Trinity Term, 1737, he took the oaths and his seat as Lord 
Chief Justice in the Court of King’s Bench. Subsequently 
to the Revolution, when judges actually did discharge their 
duty in an independent manner, they ceased to make any 
parading professions of their good intentions, and inaugural 
speeches had become obsolete. Lord Chief Justice Lee is 
said materially to have altered the opinion which the bar en- 
tertained, or at least expressed, of his law, by retaining a 
French cook, and giving frequent rounds of good dinners 
with copious draughts of claret and champagne.* He like- 
wise had a villa at Totteridge, which still belongs to his 
family, where he used to entertain professional parties very 
hospitably, and tell them how he came in with King William. 
Dependants and flatterers clustered round him, and before 
he died he was praised as one of the greatest of Chief 
Justices. 

His fame may have increased from his having had the 
good word of the fair sex; he certainly stood up for the 
rights of woman more strenuously than any English judge 
before or since his time. He had to decide “ whether a 
female may by law serve the office of parish sexton?” and 
*‘ whether females were entitled to vote at the election of a 
sexton?” John Olive and Sarah Bly were candidates for 
the office of sexton in the parish of St. Botolph in the city 
of London. She had 169 male votes and 40 female. He 
had 174 male votes and 22 female, and he was sworn in. 
The validity of the election coming on to be determined in 
the Court of King’s Bench, the gentleman contended that all 

* He was in the habit of particularly praising the precept of Lord Burleigh 


to his son “ to keep an orderly table; ” by which he understood a table covered 
with good di:hes set out in orderly fashion. 


219 


CHAP. 
XXXVI. 


A.D, 1737. 


His in- 
creasing 
popularity. 


His judg- 
ment in 
favour of 
the “ rights 
of wornen,” 


220 LIFE OF CHIEF JUSTICE LEE. 


CHAP. the votes for the lady were thrown away, as she was dis- 

a Fee qualified on account of her sex; and at any rate that he had 
a majority of lawful votes, as the female votes on both sides 
must be struck off from the poll, a woman being no more 
entitled to vote for a sexton than for a member of parliament 
or for a coroner, which Lord Coke says “ they may not do 
although they have freeholds and contribute to all public 
charges — even to the wages of knights of the shire, which 
are to be levied de communitate comitatus.” (4 Inst. 5 Reg. 
Brev. 192.) 

Lee, C.J.: “1 am clearly of opinion that a woman may be 
sexton of a parish. Women have held much higher offices, and, 
indeed, almost all the offices of the kingdom: as Queen, Marshal, 
Great Chamberlain, Great Constable, Champion of England, Com- 
missioner of Sewers, Keeper of a Prison, and Returning Officer for 
members of parliament.” * 2. As to the second point, it would be 
strange if a woman may herself fill the office, and yet should be 
disqualified to vote for it. ‘The election of members of parliament 
and of coroners stands on special grounds. No woman has ever 
sat in parliament or voted for members of parliament, and we 
must presume that when the franchise was first created it was con- 
fined to the male sex. There was no reason for such a restriction 
respecting the office of sexton, whose duties do not concern the 
morals of the living, but the interment of the dead. ‘The female 
votes being added to the poll, Sarah Bly has the majority, so 
that she, and not John Olive, is now the lawful sexton of this 
parish.” 

The Puisnies concurring, judgment was given in her 
favour. T 

I do not find any other cases which came before him in the 
King’s Bench so fully reported, but, from short notes in 

Other im. Strange, we find that he decided several important points — 
portant as that “it is a misdemeanor to take a young lady out of 
angio the care of a guardian appointed by the Court of Chancery, 


him. 


* Spelman’s Glossary, 497.; 3 Keble, 32.; Blunt’s Tenures, 47. ; Dyer, 
285.; Hob. 148.; Brady’s History of Boroughs. Lady Packington was re- 
lieving officer at Aylesbury; and the famous Countess of Pembroke, being 
hereditary sheriff of Westmoreland, attended the judges in that capacity at the 
assizes, 

+ 2 Str.1114. Same Case, MS. Taking the converse of Lee’s rule, a woman 
may be a Director of the East India Company, as she is entitled to vote for that 
office. 


LIFE OF CHIEF JUSTICE LEE. 


and to marry her, although she goes away voluntarily; ” 
that “it is a misdemeanor to keep gunpowder where it may 
be dangerous to the King’s subjects;” f that “it is actionable 
to say of a justice of the peace, in the execution of his office, 
that he is arogue;”} that ‘at common law a factor, although 
HIM to sell, cannot pledge the goods consigned to Eis 
care;” § that “if a ship, insured in time of war against all 
perils except capture, sails on the voyage and is never heard 
of, it shall be presumed that she foundered at sea, so as to 
make the underwriters liable; ” || that “an action lies for 
keeping a dog, known by his master to be accustomed to 
bite men, whereby the plaintiff was bitten, although the 
damage arose from the plaintiff having accidentally trod upon 
the dog’s toes;”| and “‘ that a pardon being pleaded to an 
indictment for murder, after a special verdict found, the 
prisoner is entitled to be discharged without finding sureties 
to abide an appeal by the heir of the deceased.” ¥ 

Lord Chief Justice Lee presided at the special commission 
which sat for the trial of those who had taken part in the 
rebellion of 1745. Under an act of parliament which au- 
thorised the Government to prosecute them in any county in 
England, a Court, attended by all the Judges, assembled at 
St. Margaret’s Hill, in the borough of Southwark. Most of 
those who were to be tried had been engaged in the siege of 
Carlisle, and had surrendered to the Duke of Cumberland. 
The charge to the grand jury was given by Lee, who fully 
explained to them how they, in Surrey, came to have cog- 
nisance of offences committed in a distant part of the king- 
dom, and laid down to them very distinctly the doctrine of 
compassing the King’s death and of levying war against him. 

The indictments found against the Earls of Kilmarnock 
and Cromartie, and Lord Balmerino, were immediately re- 
moved by certiorari to the House of Peers, — but those 
against commoners were proceeded with before Surrey juries 
as expeditiously as the forms of law would permit. 


* Rex v. Lord Ossulston, 2 Str. 1107. + Rex v. Taylor, ib. 1167. 
+ Kent v. Pocock, ib. 1168. . § Patterson v. Tash, ib. 1178. 
|| Green v. Brown, ib. 1199. | Smith v. Polak, ib. 1264. 


q Rex v. Chetwynd, 18 St. Tr. 289. 


221 


CHAR: 
XXVI. 


A.D. 1746, 


Trials of 
the rebels 
at St. Mar- 
garet’s 
Hill. 


July, 1746, 


222 


CHAP. 
XXVI. 


A.D. 1746, 


Colonel 
Townley’s 
Case. 


LIFE OF CHIEF JUSTICE LEE. 


The first case taken was that of Colonel Francis Townley, 
the representative of an ancient family in Lancashire, who, 
entering the French service, had distinguished himself much 
at the siege of Philipsburgh and on various other occasions, 
and who still held a commission from the King of France 
when he joined the army of the Pretender. He set up two 
defences. ‘The first was, that he ought to be treated as a 
prisoner of war and not as a traitor, for he had acted under 
the authority of a foreign sovereign, who was making open 
war against the crown of Great Britain, —therefore, instead 
of being executed for high treason, he was entitled to be ex- 
changed under the cartel lately established between the two 
countries, according to the usages of honourable hostilities. 
2dly: At all events, if he were still liable to be treated as an 
English subject, he claimed the benefit of the articles of the 
capitulation of Carlisle, signed by the Duke of Cumberland, 
engaging that, on the surrender of the city, the prisoners 
taken in arms “shall not be put to the sword, but be re- 
served for the King’s pleasure,”— amounting, as he contended, 
to a solemn pledge that their lives should be spared, and, 
therefore, barring any capital proceedings against them. 

Lee, C. J.: “ Neither defence can avail: — 1. The prisoner is 
a native-born subject of this realm, and cannot free himself from 
the allegiance which he owes to his own sovereign by entering 
into the service of a foreign state. Our law says, Nemo potest 
exuere patriam. ‘The very fact relied upon that the prisoner is in 
the service of France, a country with which we are now at war, 
is an adherence to the King’s enemies, and an overt act of high 
treason. 2. The second defence we could give no effect to here, 
and it could only be made the foundation of an appeal to the 
Crown to withdraw a prosecution which ought not to have been 
instituted ; but, as it has been brought forward, I think I am 
bound to say that, in my opinion, there is no foundation for it in 
reason, justice, or honour. The only fair meaning of the words 
relied upon is, that the prisoners should not immediately be put to 
death by martial law as rebels taken in arms, but should have the 
benefit of a fair trial according to our humane forms of procedure 
before the Judges of the land.” * 


* A mighty small benefit, certainly; as, if tried for treason, they could not 
have the remotest chance of escape, and it would have been better for them to 
have been shot, than hanged, embowelled while yet alive, beheaded, and quartered. 


LIFE OF CHIEF JUSTICE LEE. 


The prisoner was, of course, found guilty ; and, to show the 
customs and feelings of Englishmen in the middle of the last 
century, I add a short contemporaneous account of his exe- 
cution, which was read then without any wonder or any 
disapprobation :—‘ After he had hung six minutes he was cut 
down, and, haying life in him as he lay upon the block to be 
quartered, the executioner gave him several blows on his 
breast, which not having the effect designed, he immediately 
cut his throat; after which he took his head off; then ripped 
him open, and took out his bowels and heart, and threw them 
into a fire, which consumed them; then he slashed his four 
quarters, and put them with the head into a coffin, and they 
were carried to the new gaol in Southwark, where they were 
deposited till August 2., when his head was put upon Temple 
Bar, and his body and limbs suffered to be buried.” Chief 
Justice Lee, and five other Judges, in the discharge of their 
duty signed the warrant by which these revolting cruelties 
were authorised.* 

The next trial in which any question of law arose was 
that of Alexander M‘Growther, a lieutenant in the Duke of 
Perth’s regiment, which had formed a part of the Pretender’s 
army. The prisoner stated, by way of defence, “that he 
was a vassal of the Duke of Perth; that he was bound to 
obey the orders of his superior; that, nevertheless, having 
refused to do so, the Duke of Perth had threatened to burn 
his house to the ground, and to lay waste all that belonged 
to him, if he would not enter into the rebellion.” He ac- 
cordingly called four witnesses, who deposed to those threats, 
adding “that the Duke’s men had begun to bind him with 
cords before he enlisted; that he yielded, to save himself from 
ruin; and that by the custom of the country the vassal is 
considered bound to execute the orders of his superior, what- 
ever they may be.” 

Lee, C.J.: “We cannot hear of any such custom. The King’s 
subjects owe allegiance to the King alone, and are bound only 
to obey the law. There is not, nor ever was, any tenure which 
obliges tenants to follow their lords into rebellion. And as to 
the matter of force, the fear of having houses burnt or goods 


* 18 St. Tr. $29—352. 


223 


CHAP, 
KEV 


A.d. 1746. 
An execu» 
tion for 
high 
treason. 


M‘Grow-' 
ther’s Case, 


224 


CHAP. 
XXXVI. 


A.D. 1746. 


The Kin- 
lochs’ 
Case. 


LIFE OF CHIEF JUSTICE LEE. 


spoiled, or a slight injury to the person, is no excuse in the eye of 
the law for joining and marching with rebels. The only force 
that excuses is, a force leading to present fear of death, and this 
force and fear must continue all the time the party remains with 
the rebels. It is incumbent on every man who makes force his 
defence, to show an actual overruling force, and that he quitted 
the service of the rebels as soon as he could, — according to the 
rule laid down in Oldeastle’s Case, 1 Hale, 50., that the prisoner 
joined pro timore mortis et recessit quam cito potuit. But here 
the prisoner pretends to prove force only on the 8th of August, 
and he continued with the rebels and bore a commission in their 
army till the surrender of Carlisle on the 30th of December.” 

The jury, without going from the bar, found a verdict of 
guilty. This prisoner, however, was reprieved and afterwards 
pardoned.* 

Alexander Kinloch and Charles Kinloch having pleaded 
not guilty,—after their trial upon this plea had begun, insisted 
that they were entitled to be acquitted, because they were 
native-born Scotchmen, and by the articles of union between 
Scotland and England Scotland was to retain her own laws, 
so that they ought to be tried by the Court of Justiciary in 
Scotland. The Judges ruled that this objection, if well founded, 
could only be taken advantage of by plea in abatement to 
the jurisdiction of the Court; and, in favour of life, they 
allowed the jury to be discharged, the plea of not guilty to 
be withdrawn, and the plea in abatement to be substituted 
for it. ‘To this the Attorney General demurred, and the 
point was argued at great length: — 

Lee, C.J.: “ We are all of opinion that the birth, residence, 
and apprehension of the prisoners in Scotland are facts perfectly 
immaterial in the present case. So it would have been even at 
common law; for at common law every man is triable, not where 
he was born, resided, or was apprehended, but where the offence 
was committed. Moreover, we are now sitting under a special 


* Foster says, — ‘“ Many of the Scotch prisoners made the like defence, 
and the same directions in point of law were given. The matter of fact, whether 
force or no force, and how long that force continued, with every circumstance 
tending to show the practicability or impracticability of an escape, was left to 
the jury on the whole evidence.” (Foster, ch. ii. s. 8.; East’s Pleas of the 
Crown, ch. ii. s. 15.; 18 St. Tr. 391—394 ) See likewise the trial of Fergus 
M‘Ivor and Evan Dhu M‘Combick, which took place at Carlisle a few weeks 
after. (3 Waverley, 300.) 


LIFE OF CHIEF JUSTICE LEE. 


act of parliament which gives us jurisdiction in all treasons with- 
out any distinction of persons or localities.” 

The plea in abatement being overruled, the prisoners again 
pleaded not guilty; and, being tried by another jury, were 
convicted on clear evidence, for they had taken a very active 
part in the Pretender’s invasion of England. But they 
moved, in arrest of judgment, that the conviction was un- 
lawful, as the Court had no power, even with their consent 
and at their request, to discharge the first jury; and that 
being once given in charge to that jury, they could not law- 
fully be tried by any other. When the question was argued 
before the twelve Judges, the counsel for the prisoners gave 
instances in which the assumed power of discharging the 
jury, after the commencement of the trial, had been abused 
to the oppression of the subject; and relied upon a dictum of 
Lord Holt, that “in criminal cases a juror cannot be with- 
drawn but by consent, and in capital cases it cannot be done 
even with consent.” 

Lee, C. J.: “ With the exception of my brother Wright, we 
are all of opinion that the conviction is regular, and that sentence 
of death must be passed upon the prisoners. The rule that a trial 
once begun must proceed to a conclusion before the same jury, 
cannot bind in cases where it would be productive of manifest 
injustice or great hardship to the prisoner. In the present case, 
the objection urged by the prisoners of our want of jurisdiction 
might have turned out to be well founded; but it could not have 
been taken advantage of under the plea of not guilty. Liberty 
was therefore given to them to withdraw that plea. When with- 
drawn, the jury had no issue to try, and must therefore of 
course be discharged. Consequently they have no right to com- 
plain of that which was a necessary consequence of an indulgence 
shown them by the Court. ‘The authority of Lord Holt is high ; 
but Lord Hale says, ‘In case a man in a phrensy happen by 
some oversight to plead to his indictment, and put himself upon 
his trial, and it appeareth to the Court upon his trial that he is 
mad, the judge in discretion may discharge the jury, and remit 
him to gaol, to be tried after the recovery of his understanding.’ ” 
Wright, J.: “I admit that the discharging of the jury in the 
present case was an instance of great indulgence to the prisoners ; 
but I think it is safer to adhere to a general rule, than on any 

VOL. II. Q 


226 


CHAP. 
XXVI. 


A.D. 1746, 


Sir John 
Wedder- 
burn’s 
Case, 


LIFE OF CHIEF JUSTICE LEE, 


account to establish a power in judges which has been grossly 
abused and may be again. The policy of the law of England, 
and, indeed, the true principles of all government, will rather 
suffer many private inconveniences than introduce one public 
mischief. I consider the trial by the same jury which is sworn 
and charged with the prisoner as part of the jus publicum, as 
a sacred depositum committed to the judges which they ought to 
deliver down inviolate to posterity.” 

The usual sentence in cases of high treason was accordingly 
passed upon the prisoners, but the difference of opinion in 
the Court saved their lives, and they were pardoned on con- 
dition of being sent abroad.* 

The last trial under this special commission was that of 
Sir John Wedderburn. The Government had resolved to 
make an example of a non-combatant, and indicted him for 
high treason, although he had not mounted the white 
cockade, and he never carried any arms but a small sword, 
then worn by every private gentleman. But it was proved 
that he accepted the appointment, under the Pretender, of 
collector of excise, and that accordingly he did collect the 
excise in several places where the rebel army lay. His 
counsel objected that this evidence did not support the in- 
dictment; but Lord Chief Justice Lee declared the opinion 
of all the Judges, that collecting money for rebels is an overt 
act of high treason. The prisoner was convicted, and exe- 
cuted as a traitor on Kennington Common. ft 

When the rebel peers were tried before the House of 
Lords, Chief Justice Lee and the other Judges attended 
as assessors, but only one point of law was referred to 
them, — “ whether the dates given to the overt acts of trea- 
son in the indictment were material?” —and Lee, as the 
organ of his brethren, explained to the astonished Scotch 
this mystery of English procedure, that “time and place 
must be laid in the indictment with certainty, but that 
evidence may be admitted to prove the offence to have been 


* 18 St. Tr. 395—416. 

t+ Ibid. 425. When a boy I knew his son, who was called Sir John Wed- 
derburn, although the baronetey had been forfeited by the attainder. He 
too had been “out in the 45,” and he told very marvellous stories of his 
adventures, 


LIFE OF CHIEF JUSTICE LEE. 


committed at any other time or any other place within the 
same county.” * 

Lord Chief Justice Lee, notwithstanding his defective 
elocution and very limited acquirements, got on pretty 
well in the discharge of the duties of his high office, till he 
broke down in the trial of a prosecution for libel ordered by 
the House of Commons; after which he lost all authority, 
and experienced constant mortification. William Owen, a 
bookseller, having published a pamphlet which severely and 
justly censured the conduct of the House of Commons in 
committing to Newgate the Honourable Alexander Murray 
because he refused to fall down on his knees before them, 
an address to the Crown was carried, with a foolish unani- 
mity, that the Attorney General should be directed to pro- 
secute the publisher. Sir Dudley Ryder accordingly filed 
a criminal information against Owen, and, at the trial, in- 
sisted that he was entitled to a verdict of guilty on merely 
proving that a copy of the pamphlet had been sold by the 
defendant. But he was encountered by Pratt (son of the 
Chief, and afterwards Lord Camden), who strenuously in- 
sisted that as, in an indictment for an assault with intent to 
ravish, the intention must be proved, or there must be an 
acquittal, so here the jury must consider whether the zn- 
tention of the writer was to defame the representatives of the 
people, or, by exposing and correcting their errors, to render 
them more respectable and useful ? 

The Chief Justice was much shocked by this doctrine, 
but he had not the art which enabled Lord Raymond to 
combat it successfully, and which was afterwards exhibited 
more strikingly by Lord Mansfield against the publishers of 
Junius. In summing up, without attempting to take off 
the effect of the popular arguments urged for the defendant, 
he drily said, “ The publication of the pamphlet being thus 
proved, and, indeed, not being denied by the defendant, I am 
of opinion that you are bound to find him guilty. I have 
ever supported the principles of liberty established at the 
Revolution, but I must keep juries to questions of fact. 


* 18 St. Tr. 442—858. : : : 
+ I am surprised he did not inform them that “he came in with King Wil- 
liam, and therefore had always been a good Whig.” 
Q 2 


227 


CHAP. 
XXVI. 


ASD. L752 
Signal de- 
feat of 
Chief Jus- 
tice Lee 
in a trial 
for libel. 


228 


CHAP. 
XXXVI. 


A.D. 1753. 


Chief Jus- 
tice Lee 
Chancellor 
of the Ex- 
chequer. 
March 3. 
1754, 


LIFE OF CHIEF JUSTICE LEE, 


Whether the pamphlet be a libel, is matter of law; if it be 
not, the defendant might have demurred to the information, 
or may, after your verdict of guilty, move in arrest of judg- 
ment or bring a writ of error.” The jury withdrew, and 
when they returned, after having been absent two hours, the 
following scene was enacted : — 

Clerk of the Court: “ Gentlemen of the jury, are you agreed 
on your verdict? Is the defendant guilty or not guilty?” ore- 
man: “Guiry!” Chief Justice: “ You could not do otherwise.” 
Jurymen: “No! no! my Lord! it is all a mistake, — we say 
Nor Gumuty.” Foreman: ‘“ Yes, my Lord, it was a mistake; I 
meant to say Nor Guiry.” Bystanders: “ Huzza! Huzza! ! 
Huzza!!!” Attorney General: “ My Lord, this must not be; I 
insist on the jury being called back and asked their opinion upon 
the only question submitted to them.” Chief Justice: ‘* Gentle- 
men of the jury, do you think the evidence laid before you of 
Owen’s publishing the book by selling it is not sufficient to con- 
vince you that the said Owen did sell this book?” Foreman: 
“ Nor Guitty! my Lord ; Nor Guirty!” Juryman: “Yes, my 
Lord, that is our verdict, and so we say all.” The rest of the Jury: 
“ So we say all, so we say all.” 

There was a prodigious shout of applause in Guildhall, 
and at night there were bonfires in the streets to celebrate 
the triumph over an unpopular House of Commons. * 

A degree of ridicule was now attached to Lee’s name, and 
he found his position very uncomfortable; for not only would 
juries often find verdicts contrary to his direction, but the 
bar paid little deference to him, and even his puisnies were 
too apt to show that they considered themselves his betters. 

Some legal chroniclers, not familiar with official usages, 
have said that under these circumstances, like his predecessors 
in the reigns of Charles I. and James I., he meant to quit 
law for politics, and that he accepted the office of Chancellor 
of the Exchequer. This fact is literally true. The seals of 
Chancellor of the Exchequer were indeed handed over to him 
on the 3d of March, 1754, and they remained in his possession 
till within a few days of his death. He was appointed, however, 
only under the immemorial custom that when the office of 


* 18 St. Tr, 1203.; post, Life of Sir Dudley Ryder. 


LIFE OF CHIEF JUSTICE LEE. 


Chancellor of the Exchequer suddenly becomes vacant, and 
a difficulty arises about effectively filling it up, it is nomi- 
nally held ad interim by the Chief Justice of the King’s 
Bench for the time being, who does the formal acts neces- 
sary for the progress of business in the Exchequer. On the 
sudden death of Mr. Pelham, Lord Chief Justice Lee held 
the seals of Chancellor of the Exchequer till the nomination 
of Mr. Legge; but in this capacity he never did anything 
more than sign his name or seal a writ, and the Duke of 
Newcastle had as little thought of introducing him into the 
new Cabinet as of making him Archbishop of Canterbury. * 

The time was at hand when Lee was to be freed from the 
irksomeness of his position by being transferred to a better 
world. His health and spirits having been some time de- 
clining, on the evening of Wednesday, the 3rd of April, 
1754, he was struck with apoplexy, and, early in the morning 
of Monday, the 8th of the same month, he expired, in the 
sixty-sixth year of his age, and the seventeenth of his Chief 
Justiceship. He was buried at Hartwell, where a handsome 
monument has been erected to his memory. 

There have been recently given to the world very copious 
extracts from a sort of diary that he kept, under the title of 
** Miscellanea,” and from entries made by him in a succession 
of almanacs which he carefully preservedf; but these are 
perused with much disappointment. ‘They might have con- 
tained some lively sketches of his own adventures, and some 
amusing anecdotes of his contemporaries, although we could 
not have expected in them much profundity of thought or 
brillianey of fancy ; but they consist chiefly of legal antiqui- 
ties with which almost every one is quite familiar, and of 
dull observations on dull books which he had read.t He 


* One learned author has even suggested that the fact of Lee * filling the 
office of Chancellor of the Exchequer as well as of Chief Justice might have 
been the reason of his remaining a Commoner ; ”—as if he had been in the habit 
of opening the Budget in the House of Commons. (Harris’s Life of Lord 
Hardwicke, iii. 517.), 

+ Law Magazine, xxxviil. 217., xxxix. 62. 

+ There are some historical notices likewise, showing that my Lord Chief 
Justice was very little acquainted with events which had happened before his 
own birth and the coming in of King William: ec. g. “It appears by the letters of 


a 3 


229 


CHAP. 
XXVI. 





A.D 1754, 


Death of 
Chief Jus- 
tice Lee. 


His diary 
and alma- 
nacs. 


230 


CHAP. 
XXVI. 





LIFE OF CHIEF JUSTICE LEE. 


seems to have been a believer in the old theory of medicine 
founded on radical heat and radical moisture, and to have 
paid great attention to the directions of almanac-makers 
respecting diet and blood-letting. Thus he says, under date 
* October, 1737.— Dr. Cheney told me that the Bath waters 
were the best remedy he knew for the stomach, or for vapours 
arising from too great coldness of blood; and wherever there 
was not sufficient calidum naturale, he knew no outward help 
equal to them. He laid down the rule that to hot blood 
cooling waters should be applied.” His almanac was “ Rider’s 
British Merlin, adorned with many delightful and useful 
verities, fitting all capacities in the islands of Great Britain’s 
monarchy ; with notes of husbandry, &c. Compiled, for his 
country’s benefit, by Cardanus Rider.” The following very 
wholesome precepts of this sage were particularly valued by 
the Chief Justice : — “ It’s hurtful to fast long. Use meats 
that are moderately hot; for the best physic is warm diet, 
warm clothes, and a merry, honest wife. Consult with your 
tailors as well as physicians. Let a warm fire, and a cup of 
generous wine or good October beer, be thy bath; the 
kitchen thy apothecary’s shop; hot meats, and broth, thy 
physic; and a well-spread table the proof of thy charity to 
thy poor neighbour.” 

Notwithstanding all these precautions, he was very nearly 
cut off when attending the Old Bailey sessions, in May,’ 
1750. The gaol fever then raged in Newgate, as in other 
prisons, and (what was no uncommon occurrence in those 
times) it was communicated, by the prisoners brought into 
court for trial, to the judges, the jurymen, and the witnesses. 
He escaped, though exposed to the contagion ; but Mr. Justice 
Abney, and many others, perished. He made a sharp re- 
monstrance to the Lord Mayor and aldermen of London, and 
preventives were introduced which are still kept up at the 
Old Bailey —such as fumigating the court several times a 


D'Estrade that Lord Clarendon advised the sale of Dunkirk, and that Lord 
Clarendon was also extremely averse to the Presbyterians, who by that history 
appear to have behaved very well, and to have been for the Restoration.” He 
thinks it was unknown, before the publication of these letters, that Lord Cla- 
rendon had any thing to do with the sale of Dunkirk, or behaved with ingrati- 
tude and bad faith to the Presbyterians, 


LIFE OF CHIEF JUSTICE LEE. 


day by means of a hot iron plunged in a bucket filled with 
vinegar and sweet-smelling herbs.* 

Valuing above all things “a merry, honest wife,” soon after 
he had lost his first — Anne, daughter of John Goodwin, Esq,, 
of Burley, in the county of Suffolk,—he married, secondly, 
Margaret, daughter of Roger Drake, Esq., and relict of 
James Melmoth, Esq., who, on the authority of Lord Hard- 
wicke, was “an agreeable lady, with 25,0002. fortune.” f 
But he himself records this event with wonderful brevity, for, 
in his almanac for 1733, after writing “Six bushels of oats 
for four horses per week; hempseed good in their corn; 
walking them in dewy grass in the morning, very good: for 
rheumatism, elder tea,” —he only adds these words: “I MAr- 
RYED TO Mrs. M. M.” (meaning Mrs. Margaret Melmoth). 
He lived happily with her till May, 1752; but he makes no 
further mention of her, living or dead. 

It may alarm some who complacently exult in their present 
consequence, and confidently calculate on enjoying a lasting 
reputation, to know that Chief Justice Lee not only con- 
sidered himself, but was considered by many in his own day, 
to be a great man. He was frequently a dedicatee, and the 
dedicators ascribed to him every virtue under heaven. Even 
after his death, when he could no longer give away master- 
ships or clerkships, nor encourage nor frighten young bar- 
risters by his smile or his frown, thus wrote Sir James 
Burrow —a very able man, afterwards the reporter of 
Mansfield : — 

«“ He was a gentleman of most unblemished and irreproachable 
character, both in public and in private life; amiable and gentle 
in his disposition ; affable and courteous in his deportment ; cheers 
ful in his temper, though grave in his aspect ; generous and polite 
in his manner of living; sincere and deservedly happy in his 
friendships and family connections; and to the highest degree 
upright and impartial in the distribution of justice. He had been 
a Judge of the Court of King’s Bench almost twenty-four years ; 
and for near seventeen had presided in it. In this state the in- 
tegrity of his heart and the caution of his determination were so 


* Gentleman’s Magazine, xx. 333. 
{ Harris’s Life of Lord Hardwicke, i. 233. 


Qa4 


231 


CHAP. 
XXXVI. 


Chief Jus- 
tice Lee’s 
greatness 
in his own 


- time. 


His éloge by 
Sir James 
Burrow. 


232 


CHAP. 
XXVI. 


Chief Jus- 
tice Lee’s 
MSS. 


LIFE OF CHIEF JUSTICE LEE. 


eminent, that they probably never will, perhaps never can be, 
excelled.” * 

Sir James has been laughed at for concluding with this anti- 
climax :—‘* He was peculiarly master of that sort of knowledge 
which respects the settlement of the poor;” but I doubt very 
much whether the legal hero thus extolled would not himself 
have been gratified by the panegyric. 

Lord Chief Justice Lee is now represented by his great- 
grandson, the very learned civilian, Dr. Lee, who has inherited 
Hartwell and the other large estates of his family.+ 


* Burrow’s Settlement Cases, p. 328. 4to. 1768. 

+ Since I finished the above little memoir, by the kindness of Dr, Lee (for 
which I am most grateful) I have had an opportunity of perusing all the Chief 
Justice’s MSS., amounting to above 100 volumes; but I have been unable to 
extract any thing from them for the instruction or amusement of the reader. 
They prove the extraordinary industry of the compiler during the whole course 
of his long life. His common-place book is stupendous, and he had digested 
reports of an immense number of cases decided while he was a student and at 
the bar. Beyond his own profession he appears to have had some taste for 
metaphysics, and he copies passages from Locke, Hobbes, and Bishop Berkeley ; 
but in the whole mass I can find nothing original, either grave or gay. His 
note-books from the time he was made a judge, both in civil and criminal 
trials, are extant, without any incident being recorded in them, or any remark 
being made on the counsel who pleaded before him. None of the letters he re- 
ceived are preserved, and there is the draught of only one letter written by him. 
This was to Lord Hardwicke, and describes the writer’s growing infirmities :—‘ As 
to my present state of health,” says he, “it is but low, and JI cannot walk at all 
without help. What my future condition will be, Godonly knows. But as long 
as I exist I trust and hope the consciousness I have of your Lordship’s judgment 
and integrity will remain; and may your counsels long, very long, flourish, is 
the most sincere wish of your Lordship’s most humble servant, W. Lex.” 


LIFE OF CHIEF JUSTICE RYDER. 233 


CHAPTER XXVIII. 


LIFE OF CHIEF JUSTICE RYDER. 


I HAVE one other dull Chief Justice of the King’s Bench to CHAP. 
take in hand, but I am comforted by the recollection that he Bert 
was immediately succeeded by the most accomplished Com- g.. Dudley 
mon Law Judge who presided in Westminster Hall during Ryder. 
the eighteenth century. Although Srr DupLey RypEr 
was eminent in his profession, as well as a man of spotless 
character, his career was without any stirring incidents; he 
was not distinguished either in literature or politics, and his 
intimacies were chiefly with men as insipid as_ himself. 
Unluckily for his biographer, he not only never excited 
much admiration in public life, but he did no act deserving 
of severe censure, and nothing dishonourable was even im- 
puted to him. Yet I cannot pass over in silence a man who 
filled the important office of Attorney General much longer 
than any of his predecessors or successors, who was for many 
years the colleague of Mansfield, who ranks among the Chief 
Justices of England, whose patent of peerage was signed 
when he was suddenly snatched away, and whose death pro- 
duced a very memorable crisis in the party history of our 
country. 

The Ryders are all said to be descended from the ancient 
family of Rythre, which was seated for many ages at Rythre, 
in the hundred of Barkston, in the county of York; but 
the line we are considering cannot be distinctly traced higher 
than the Reverend Dudley Ryder, who, in the beginning of 
the seventeenth century, was a nonconformist minister at 
Bedworth, in the county of Warwick. Although a zealous 
Puritan, he was not without worldly ambition; and he pro- 
phesied that in his descendants thy name of Ryder would 
recover and exceed its ancient splendour. He did not live 





His origin. 


234 


CERAIE. 
XXVITI, 


His edu- 


cation. 


LIFE OF CHIEF JUSTICE RYDER. 


to see the fulfilment of this prophecy, but one of his grand- 
sons was Archbishop of Armagh, and another was Chief 
Justice of England. In the first generation after him there 
was no appearance of such an elevation, for his two sons, 
John and Richard, were both tradesmen. John, the father 
of the Irish Primate, kept a haberdasher’s shop at Nuneaton, 
in Warwickshire. Richard, the father of the Chief Justice, 
was a mercer in West Smithfield, in the city of London. 
A. love of learning, however, was still hereditary in the 
family; the Reverend Dudley’s library was divided among 
his descendants, and they were remarkable for intelligence 
as well as sobriety of manners. 

Sir Dudley, whose career we are now to follow, was the 
second son of the mercer, and was born in the year 1691. 
He is the first Englishman I read of who laid the foundation 
of future eminence at a Scotch University ; being in due time 
to be followed by an illustrious band of successors, including 
Lord Melbourne and Lord John Russell. After a tolerably 
good school education at a dissenting academy at Hackney, 
he studied some years at Edinburgh, which was then rising 
into celebrity from the eminence of its professors. Being 
destined to the profession of the law, he followed the custom, 
which he found then almost universal among Scotchmen who 
were to pass as advocates, of going to Leyden to be initiated 
in the Roman civil law. Both there and at Edinburgh he 
enjoyed the opportunity, which was still much prized by his 
family, of having the Gospel preached and its rites ad- 
ministered in true Genevese presbyterian purity. When 
mixing in after-life with those who had been bred at the 
English public schools and the English universities, and who 
were perpetually talking of these seminaries as if there were 
no valuable knowledge to be acquired elsewhere in the world, 
he sometimes regretted, for the sake of being on an equal 
footing with them in conversation, that he had not fagged or 
been fagged by some of them at Eton, nor joined in their 
boasted bacchanalian exploits at Oxford; but he felt that he 
had amassed a greater stock of valuable knowledge than most 
of them, and that, having lived with those who like himself 
were a little pinched by penury, he had acquired habits of 


LIFE OF CHIEF JUSTICE RYDER. 


reflection, of self-denial, and of persevering industry which 
would enable him to outstrip those who for the present 
superciliously affected a superiority over him. 

After entering as a student at the Temple, notwithstanding 
his high veneration for the memory of his grandfather, the 
Puritan pastor, he joined in communion with the Episco- 
palians, being of opinion that forms of ecclesiastical govern- 
ment were left by our Blessed Saviour to be adapted to the 
exigencies of different societies, and that the enlightened and 
tolerant Church of England, respected and beloved by the 
great majority of the inhabitants of this country, was then to 
be preferred to the Presbyterian persuasion, which had fallen 
off both from the orthodoxy and the learning which had 
distinguished it in the times of Calamy and Baxter.* 

Having been called to the bar by the Society of the 
Middle Temple, he soon afterwards transferred himself to 
Lincoln’s Inn. In due time he was elected a Bencher and 
Treasurer of this Society, and he became much attached to 
it.t Although from his first start he was always advancing, 
so noiseless was the tenour of his way that we read little 
more respecting him till he was about to be appointed a law 
officer of the Crown. His rise was chiefly to be ascribed to 
the friendship of Lord King, who, like him, was the son of a 
tradesman, had studied at Leyden, had been brought up 
among Dissenters, and, taking to the profession of the law, 
had conformed to the Established Church. By this powerful 
patron he was introduced to Sir Robert Walpole, who had 
the sagacity to discover his serviceable merit, and resolved to 
employ him. 

Accordingly, in the move which took place on the pro- 


235 


CHAP, 
XXVII. 


May 8, 
1719. 


July 8. 
1725. 
He is 
called to 
the bar, 


He is made 


motion of Talbot and Yorke to be Chancellor and Chief Solicitor 


Justice of the King’s Bench, Ryder was made Solicitor 
General. 
I do not recollect any lawyer of great eminence whose early 


* The English Presbyterians were then passing through Arianism to the 
Socinianism or Rationalism which they reached about the middle of the 18th 
century, 

t It appears from the books of Lincoln’s Inn, that he was admitted of that 
Society, Jan. 26. 1725 ; invited to the Bench, Jan. 23. 1733; elected Treasurer, 
Nov. 28. 1734; and made Master of the Library, Nov. 28. 1725. The last 
council he attended was on Feb, 12, 1754, 


General. 
Nov. 1733. 


236 


CHAP. 
XXVII. 





Descrip- 
tion of 
Dublin and 
the Irish 
bar in the 
beginning 
of the 18th 
century. 


LIFE OF CHIEF JUSTICE RYDER. 


career presents such a blank. There is no tradition of any 
great speech by which he forced himself into business, or of 
any vicissitudes of good or evil fortune which he experienced. 
Even when promoted to his present office, we know little of 
his companions or of his mode of life. One friendship he 
had, with Mr. Bowes, a brother barrister, who, having accom- 
panied West, the Irish Chancellor, as secretary, was called 
to the bar in Ireland, and, having been successively Solicitor 
General, Attorney General, and Chief Baron in that island, 
at last himself became Irish Chancellor and an Irish Peer. 
A constant epistolary correspondence was kept up between 
them. Bowes’s letters are preserved, and some of them are 
very curious. ‘The first which I select was written soon 
after his arrival, and gives an amusing account of the man- 
ners of Dublin —a city which was then as distant from 
London as New York now is. A lawyer is particularly 
struck by perceiving that, for advancing a favourite, prac- 
tices were formerly permitted in our profession which with 
us would be reprobated, and which, if attempted, would be 
very injurious to the person intended to be benefited.* 
* Dublin, Oct. 9. 1725. 

“ Dear Sir, — It is four weeks since I arrived here, in which 
time you might expect a tolerable account of the success of my 
project ; but, in fact, I am as incapable of forming a judgment on 
that head as when I first came on shore. 

“ When I tell you the people here are French in all respects 
but their language, you will admit I ought not to depend upon 
general civilities. In England a man might flatter himself with 
success from a like reception, but here time only can disclose the 
event of this undertaking. Iam, indeed, retained in upwards of 
twenty causes, the fees of which I have placed on the debtor side 
of my account with the Chancellor, for I consider them as com- 
pliments paid to him, and as to myself hope they will prove the 
means of showing me in business. Though I cannot appear in 
business till I am called to this bar, yet I constantly attend the 
seals, which are here opened every Thursday during the vacation, 
at which time the Chancellor answers petitions in public, and in 
that manner dispatches the ordinary motion business of the Court 





* If it be discovered that letters have been circulated soliciting briefs for a 
beginner on his first circuit, he is sentenced to silence during the whole of that 
circuit, without any evidence of complicity. 


LIFE OF CHIEF JUSTICE RYDER. 


(a method introduced for the benefit of the secretary). How- 
ever, counsel are feed in all matters of consequence, by which 
means I have already heard most of their great men, who I can 
assure you, excepting one or two, would not appear so in Eng- 
land; but I will not as yet pretend to give the history of the pro- 
fession in this kingdom, though I believe it may hereafter furnish 
matter for a very entertaining letter. 

“The Chancellor omits no opportunity to apprise the people 
here of his friendship for me, and by his means I have received 
civilities from most of the persons of distinction in this city. 

“The CastLe is the St. James’s of this place, where my Lord 
Carteret every morning plays the king and supports the character 
to admiration ; and twice a week my Lady makes her appearance 
in the drawing-room, which for beauties (in proportion to their 
numbers) exceeds England. As to myself the Court here is more 
entertaining than that of England, as it is more agreeable to be 
one of the company than a spectator ; my Lord and Lady having 
always done me the honour of talking with me in public, 

«« My present way of living is almost the reverse of what it was 
in England. I dress every day, visit ladies in a morning, receive 
compliments in form, and never stir withouta chair; in short, I 
am frightened at my own appearance, and think I have more pre- 
tensions to the beau than man of business; but they comfort me 
and say ‘it is the way of the place.’ I have almost gone the round, 
and when that is over I will by degrees sink into my old way. 

*« The profuseness of the people in eating and drinking is most 
amazing, and may properly be called the national vice. It is no 
uncommon thing here for people, in a literal sense, to eat them- 
selves out of house and home. Six dishes is the meanest table 
you sit down at, and entertainments have seldom less than fifteen. 
The wine is light and agreeable, but would not be esteemed in 
England; and if you go to the expense of the fullest wines you 
will save nothing by fetching them from this place. 

“ Dear sir, accept this as a first visit after long absence, where 
the conversation is perplexed by a variety of subjects; but I hope 
we shall often meet in this way, that our future familiar letters 
may sometimes deceive me and make me forget the distance by 
which I am separated from my friend. 

“Tam, dear sir, yours, &c. 
“ J. Bowes. * 

« Pray inclose your letters to me under cover to the Chancellor.” 


* This conclusion seems very cold; but at other times he says — 


237 


1 CHAP: 
XXVIT. 


238 


CHAP. 
XXVIT. 





REIGN OF GEORGE II. 


In 1733, Mr. Bowes had become Solicitor General in 
Treland, and he thus addresses his old friend: — 
“ 24th September. 
“ T take it for granted there will be removes in the law in Eng- 
land before the next term, and it gives me great pleasure to hear 
from all hands that Mr. Ryder will be my elder brother.” 


This promotion having taken place, and Mr. Ryder having 
married on the strength of it, he received, somewhat tardily, 
the following congratulations from Mr. Bowes: — 

“ Dec. 21. 1783. 

“ Were you sensible of the fatigue I have undergone this 
session of parliament, you would readily excuse my neglect in not 
congratulating you sooner upon your marriage, promotion, and 
(what more affects me) the recovery of your health. Besides, I 
flatter myself you want not such proofs to convince you of my 
regard for your welfare and prosperity.” 


The next year Bowes wrote the following letter to Ryder, 
in reference to the custom which then prevailed of trans- 
mitting every Irish bill to London for the opinion of the 
English Attorney and Solictor General before it was al- 
lowed to pass* : — 

“ April 30. 1734. 

“ Yesterday put an end to our tedious and troublesome ses- 
sion of parliament, in which I am sorry Mr. Attorney and you 
had so large a share. Perhaps experience may reconcile you to 
Sir Edward Northey’s rule, who used to say he had no farther 
business with Irish bills but to take care of the King’s prero- 
gative and the interest of the mother country. I heartily rejoice 
to hear that you have got safe through the great fatigue of this 
winter, and hope by the time I can see London you will be so far 
at leisure as to admit of an hour’s chat with an old friend.” 


Ryder had another professional friend, Mr. Wainwright, 
who was sent over to Ireland as a Puisne Judge, and from 


‘“« Most affectionately yours,” 


and ‘Your most affectionate and faithful friend and servant.” 
* Among the forms handed over to me when I was appointed Attorney Ge- 
neral, was one to this effect: —“ I hereby certify that I have perused this bill, 


passed by the two Houses of Parliament in Ireland, and am of opinion that it 
contains in it nothing repugnant to the law of England.” 


LIFE OF CHIEF JUSTICE RYDER. 


whom he received the following amusing account of Irish 
duels and of Irish juries: — 


“ Dublin, Aug. 3. 1733. 

“ Hitherto, Dublin has been, in comparison of what it is now, 
like London in a long vacation compared with itself when the 
parliament is sitting. Now the ladies flock to town, and show 
that there are beauties in Ireland. ‘The Court here is very gay, 
and the Judges have as large a share of all public and private 
diversions as they please. These relish very well after a circuit 
of 500 miles in a very wild country where all the beautiful scenes 
of nature are accompanied with some horrors like the pictures of 
Salvator Rosa. [After describing a gigantic race of peasanty 
he had met with in Connaught, he proceeds:] These are a quiet 
civilised generation; but there is a strange alacrity to push among 
those who are just one degree removed from the common people. 
These gentlemen are much given to quarrel at assizes, and one 
part of our business is to bind them to their good behaviour. I 
think this noble science has left the capital, and is got now into 
the remote parts of the kingdom, where the fencing masters (who 
ought to be transported as vagabonds) teach schools. I tried, 
this summer, two of the scholars for as flagrant a duel as ever 
came before a court. If all the jury had been by when the 
challenge was carried, or at the place of battle (as many spectators 
were), and saw each man kill his adversary, they would never 
have found them guilty of the murder. But I was surprised to 
find them persist in bringing in their verdict ‘ MANSLAUGHTER 
SE DEFENDENDO. ‘This they would do, that the prisoners might 
be free to fight again.” 

Four years having obscurely glided on, Ryder was pro- 
moted to be first law officer of the Crown, when Willes, the 
Attorney General, was made Chief Justice of the Common 
Pleas. 

Mr. Attorney Ryder devoted all his energies to the duties 
of his office, which he performed most admirably. Although 
a quarter of a century in the House of Commons, he never 
mingled in debate except to explain some point of law. 
Ever faithful to the prime minister for the time being, he 
engaged in no political intrigues, and, like the royal master 
whom he served, he “hated painters and poets,” so that 
no attractive name is introduced in describing scenes in 
which he took a part. His energies were never called forth 


239 


CHAP. 
XXVITI. 


A.D. 1733. 
Irish judges 
and juries, 


Hil. Term, 
LIST. 

Sir Dudley 
Ryder is 
made At- 
torney 
General, 


KD io 


His speech 
for the bill 
to dis- 
franchise 
the city of 
Edin- 
burgh. 


REIGN OF GEORGE II. 


by any personal conflict, or any distinct complaint of his 
official conduct. Though the Jacobites grumbled a little, 
because he appeared so often against their leaders, they 
never attempted to charge him with the indecent bullying of 
former days, nor with straining the enactments of the law 
against them ; so that his friends were not called upon to sound 
his praises. Hence the lasting light often struck out in the 
collision between the attack and defence of public men is here 
entirely wanting. Yet he was certainly a person of great im- 
portance in his own time; he never stirred out, even to pass 
between his house in Chancery Lane and his villa at Streat- . 
ham, without a coach-and-six, and he was the admiration or 
envy of two generations of lawyers. 

A few of his performances in parliament and at the bar 
are commemorated by contemporary writers, and these it 
will be my duty shortly to notice.* Soon after he was made 
Attorney General he had to conduct through the House of 
Commons the Bill to punish the city of Edinburgh for the 
murder of Captain Porteus; and the following speech is re- 
ported or invented for him by Dr. Johnson : — 

“ Sir, the bill now before us I will venture to say isa bill that at 
this juncture must greatly contribute to the peace and tranquillity 
of this nation. The spirit of disaffection and riot seems to have 
gone abroad; and if a timely and effectual stop is not put to it by 
a vigorous interposition of the legislature, no gentleman can be 
bold enough to say where it may stop. In the chief city of one 
part of the United Kingdom it has already left too many proofs of 
its fatal tendency, and how soon it may communicate itself to the 
other I tremble to imagine. The Upper House, sir, has already 
set us the example in what manner we ought to treat, and in 
what manner we ought to punish, such unheard-of insolence and 
barbarity. I hope, sir, we never shall be upbraided with being 
cold in seconding their zeal; I hope, sir, that it never shall be 
laid to the charge of a British House of Commons that it has been 
remiss in resenting an insult upon all law and majesty, while 
British Peers have been forward in vindicating both. It is true 
that the charge against the provost and citizens of Edinburgh con- 
sists chiefly in their neglecting to prevent the tumult before it 
happened ; in their neglecting to suppress it after it had happened ; 


* He sat for Tiverton, and established an interest in this borough which gave 
his family the command of it till the passing of the Reform Bill in 1832, 


LIFE OF CHIEF JUSTICE RYDER. 


and in their neglecting to discover, apprehend, and secure those 
who were guilty of an audacious riot and of a cruel murder. But 
this charge which is the foundation of the bill is not to be con- 
sidered as negligence only; for he who does not prevent a crime 
which he might and ought to have prevented, has always in law 
been looked upon as morally and legally guilty of that very crime. 
But it has been proved that the magistrates and citizens of Edin- 
burgh might and ought to have prevented this insurrection, might 
and ought to have suppressed it, and might and ought to have dis- 
covered, apprehended, and secured the rioters and murderers. 
Therefore, they are answerable for the crimes which have been 
committed ; and the punishment to be inflicted upon them by this 
bill is mild and merciful.” ' 


Nevertheless the resistance to it was so great, that all the 
stringent clauses which it contained were struck out, and it 
ended in imposing a fine for the benefit of Captain Porteus’s 
widow, who had been promoted from presiding in his kitchen 
to preside at his table; “so that it merely converted a poor 
cook-maid into a rich lady.”* 

In a debate on the question whether the House of Com- 
mons should proceed in a summary manner to punish by its 
own authority the printer of a libel, or should direct him to 
be brought to trial before a jury, Mr. Attorney General 
Ryder said, — 

‘« Sir, whence so much tenderness can arise for an offender of 
this kind I am at a loss to discover ; nor am I able to discover 
any argument that can be produced for exempting from instant 
punishment the printer of a paper which has already been de- 
termined by a vote of this House to be a scandalous libel tending 
to promote sedition. It has, indeed, been agreed, that there are 
contained in the paper some true propositions, and some passages 
innocent, nay, rational and seasonable. But this, sir, is nothing 
more than to say, that the paper, flagitious as it is, might have 
been swelled to a greater degree of impudence and scurrility ; that 
what is already too heinous to be borne, might by greater viru- 
lence become more enormous. If no wickedness, sir, is to be 
checked till it has attained the greatest height at which it can pos- 
sibly arrive, our courts of criminal judicature may be shut up as 
useless ; and if a few innocent paragraphs will palliate a libel, trea- 
son may be written and dispersed without danger or restraint ; for 
what libel was ever so crowded with sedition, that a few periods 


* 10 Parl. Hist. 274. 
VOL. II. R 


241 


CHAP. 
XXVITI. 





AD biota 


A.D. 1740. 


His speech 
in support 
of a motion 
in the 
House of 
Commons 
for the 
summary 
punishment 
of a libeller. 


242 


CHAP: 
XXVITI. 


A.D. 1740, 


A.D, 1741. 


His speech 
in favour 
of impress- 
ment, 


REIGN OF GEORGE II. 


might not have been selected which, upon this principle, might 
have secured it from censure? This paper was circulated among 
the representatives of the people as they entered this House, under 
the specious pretence of giving them useful information; but the 
danger of preventing intelligence from being offered to us does 
not alarm me with any apprehensions of disadvantage to the 
nation, for 1 have not so mean an opinion of the wisdom of this 
assembly as to suppose that it requires such aids from officious 
instructors, who ought, in my opinion, sir, rather to be taught by 
some parliamentary censure to know their own station, than to be 
encouraged to neglect ther proper employments for the sake of 
directing their governors. When bills, sir, are depending by 
which either the interest of the nation or of particular men may be 
thought to be endangered, it is, indeed, the incontestable right of 
every Briton to present his petition at the bar of this House, and 
to specify the reasons on which it is founded. ‘This is a privilege 
of an inalienable kind, which is never to be denied or infringed ; 
and this may always be supported without encouraging anony- 
mous intelligence, or receiving such papers as the authors of them 
are afraid or ashamed to own, and which they, therefore, employ 
meaner hands to distribute.” 

The parties were summoned to the bar, and committed for 
a breach of privilege. * 

A bill having been brought in “ for the better manning of 
the Navy,” which gave very objectionable powers to Justices 
of Peace to authorise the impressing of seamen by constables, 
it met with strong opposition; some members denying the 
right of impressment altogether, and proposing that bounties 
should be given to induce the voluntary enlistment of seamen 
in the navy : — 

Mr, Attorney General Ryder : “ Sir, the practice of impressing, 
which has been declaimed against with such vehement exag- 
gerations, is not only founded on immemorial custom which makes 
it part of the common law, but is likewise established by our 
statutes. _ Why is it, therefore, to be considered illegal or uncon- 
stitutional? Upon an emergency, all must serve by land as well 
as by sea; and when the royal standard is erected in the field, all 
the King’s subjects are bound to repair to it and to fight under it. 
This practice, which is as old as the constitution, may be revived 
at pleasure, and rests on the same foundation as the impressment 
of seamen. The safety of the state is the supreme law, which 


* 11 Parl. Hist. 887. 


LIFE OF CHIEF JUSTICE RYDER. 


must be obeyed. As to the proposed bounties, they would be 
wholly ineffectual, impressment must still continue, the apparent 
hardships of the system would be aggravated, and you would have 
a much less powerful navy at a much greater cost to the state.” 

However, Sir Robert Walpole, seeing that the measure 
was so unpopular that it might precipitate his downfall, 
wisely abandoned it; and although a bill passed “for the 
better manning of the Navy,” all the obnoxious clauses were 
withdrawn from it.* 

When Prince Charles Edward was about to engage in his 
chivalrous expedition, which for a time promised so favour- 
ably, and which terminated so disastrously, Mr. Attorney 
General Ryder introduced into the House of Commons the 
bill for suspending the Habeas Corpus Act. But we are 
only told that, “after enlarging on the present dangerous 
situation of affairs in this country, when not only a foreign 
invasion but domestic troubles were to be provided against, 
he said, that, fully convinced as he was of the importance of 
that invaluable law for the preservation of our liberties, he 
should as soon have cut off his right hand as stand up to 
make that motion, if he were not fully persuaded that it was 
absolutely necessary to secure all the invaluable blessings 
which we enjoyed.” f 

His greatest effort seems to have been his defence of Lord 
Hardwicke’s bill attainting the sons of the Pretender should 
they land in Great Britain or Ireland; making it high 
treason to correspond with them, and postponing till their 
death the mitigation of the English law of treason intro- 
duced at the Union for doing away with corruption of blood 
in all cases of high treason. Not only Jacobites, who looked 
eagerly for a restoration of the true line, but Whigs, who had 
assisted in effecting the Revolution and sincerely supported the 
new dynasty as necessary to constitutional government, were 
shocked by the proposed enactment that the young Princes, 
the undoubted heirs of Cerdic the Saxon, of William the 
Conqueror, of the Plantagenets whether wearing the white 
rose or the red, of the Tudors, of the Bruces, and of the 
Stuarts,— although, personally, they had committed no offence 


* 12 Parl. Hist. 26—143. + 13 Parl. Hist. 671. 
R 2 


243 


CHAP. 
XXVII. 


A.D. 1744. 


His speech 
for attaint- 
ing the sons 
of the Pre- 
tender. 


244 


CHAP. 
XXVII. 


A.D. 1744. 


REIGN OF GEORGE II. 


against the British nation, and although they must have con- 
sidered that they were engaged in a holy enterprise when 
they were trying, with the assistance of faithful adherents, 
to recover the crown for their exiled father, —if taken pri- 
soners in the country which their ancestors had ruled for 
fifteen hundred years, should, without any form of trial, 
be hanged like dogs on the bough of the next conyenient 
tree. The new treason of simply corresponding with them 
while they remained in distant lands was startling, as the 
interchanged letters might amount to mere courtesy, or might 
touch some point of philosophy or the arts. But the inde-~ 
finite prolongation of forfeiture of all property and all honours, 
on a conviction for high treason, was that which caused the 
greatest alarm. The union with Scotland never could have 
been accomplished except upon the solemn promise that, if 
the English law of treason was introduced into that country, 
“‘ corruption of blood,” its most cruel incident, should entirely 
cease at the death of the son of James II]. The new mea- 
sure was denounced as not only unjust and inhuman in itself, 
but as the breach of a national compact, and of the condition 
on which the Hanoverian family had been invited to the throne. 

Mr. Attorney General Ryder: “ Sir, the clause for attainting 
the two sons of the Pretender, in case they should land or attempt 
to land in Great Britain or any of the dominions thereunto be- 
longing, can stand in no need of any long explanation, or of many 
arguments for securing to it your approbation. It is vain, sir, to 
talk or to think of hereditary right to the crown beyond what we 
find in the Act of Settlement. Our only legitimate sovereign is 
his Majesty King George II., to whom we have all sworn allegi- 
ance, and whom God long preserve! All who contest the right 
to the crown of him and his heirs, must be treated as traitors. 
We cannot look to the pedigree of those who compass the death of 
our lord the King or levy war against him in his realm. The 
stability of government is essential to the good of the people, and 
this can only be secured by speedily disposing of those who claim 
the crown and try to get possession of it by force of arms. On 
this principle the Duke of Monmouth was attainted by par- 
liament, and executed without any form of trial; and on the 
same principle the present Pretender, calling himself James III. 
and James VIII. of Scotland, was himself attainted by act of 


LIFE OF CHIEF JUSTICE RYDER. 


parliament in the year 1715. Notwithstanding the attainder, no 
one would be justified in putting the law in force without a war- 
rant from the Government, and there would always be room for 
a display of royal clemency. With respect to the prohibition of 
corresponding with the sons of the Pretender, I am not much sur- 
prised that there should be some uneasiness, considering how 
many (wishing to have two strings to their bow) ever since the 
flight of James II., while they professed a devoted adherence to 
the new order of things, have wished to keep up a good under- 
standing with the exiled family, contemplating the possibility of 
anew Restoration. Ought this double-dealing to be encouraged ? 
The courtesy to be found in such letters is the offer of a hospitable 
welcome in Lochaber, the philosophy discussed is the divine right 
of kings, and the art to be illustrated is the art of rebellion. For 
the good of hot-headed Jacobites and Janus-faced politicians them- 
selves, such correspondence should be interdicted, that they may 
be saved from temptation and delivered from evil. The clause 
continuing the existing law of forfeiture for treason till the death 
of the sons of the Pretender will require some more observation, 
for it has been represented as inconsistent with religion, incon- 
sistent with natural justice, inconsistent with national good 
faith, and inconsistent with the freedom of our constitution. All 
that can be said against forfeiture for treason must proceed 
from mistaking or misrepresenting the nature of punishment, 
and the end for which it has been introduced into human so- 
cieties. It is said that punishment is ‘malum passionis, quod 
infligitur ob malum actionis,’ and therefore in its own nature it 
must be confined to the person of the criminal; for whoever 
pretends to inflict a punishment upon an innocent person, cannot 
properly be said to punish: on the contrary, he deserves to be 
punished, because, in so doing, he commits a crime, or a ‘malum 
actionis,’ and for that reason ought to suffer a ‘malum passionis.’ 
However, there are many misfortunes, inconveniences, and losses 
which innocent men are subjected to by the nature of things, and 
may be exposed to by the laws for the preservation or welfare of 
society. It is a misfortune for children to be born of parents 
afflicted with hereditary diseases; it is a misfortune for children 
to be reared by parents who are poor or profligate: but these mis- 
fortunes are not to be called punishments. In countries where 
slavery is permitted, children born of slaves are the property of 
the masters of their parents. In the ancient Roman common- 
wealth, the children of plebeians could not marry into a patrician 


family, nor beadvanced to any of the chief posts of the govern- 
R 3 


245 


CHAP. 
XXVIT. 





A.D. 1744. 


246 


CHAP. 
XXVIT. 


A.D. 1774. 


REIGN OF GEORGE II. 


ment. In a similar category are children, by our law, born of 
parents convicted of treason. If the good of society requires the 
property of the parent to be forfeited for his crimes, his children 
suffer a misfortune, but are not subjected to punishment.” 

He then proceeds at enormous length, but with very con- 
siderable ability, to quote the opinions on this subject of 
Grotius, of Puffendorf, and of Cicero; and to examine the 
treason laws of the Jews, of the Athenians, of the Romans, 
of the Saxons, of the Normans, and of the English from the 
reign of Edward III. downwards ; showing that, by the most 
enlightened statesmen and the wisest nations, forfeiture of 
property had, for the peace of society, been inflicted as a 
punishment on those who had attempted to overturn the ex- 
isting government, whether monarchical, aristocratical, or 
mixed; and the love of parents to children had been taken 
advantage of to deter men from crimes which are subversive 
of social order, and to which there is often a strong induce- 
ment from .ambition, cupidity, and love of change. He thus 
concluded : — 

“ The execution of a traitor is a fleeting example; but the po- 
verty of his posterity is a permanent lesson of obedience to the 
laws, whereby rebellion and civil war are prevented, and liberty is 
allowed to flourish. The reason which induced Parliament to 
continue forfeiture for treason in this country, at all events till the 
death of the old Pretender, applies now with equal strength to 
continue it till the death of his sons. The infatuated attachment 
to the family which systematically attacked, and which if recalled 
would soon effectively destroy, both our religion and our liberties, 
still. continues ; and wicked men, under pretence of it, seek to 
prosecute their own schemes of lawless aggrandisement. Whether 
we shall ever abolish a punishment so salutary and necessary, there 
is no occasion now to determine; but, at all events, while the Pre- 
tender’s sons survive, there will always be too many amongst us 
affected by an itch of rebellion ; and all lawyers and politicians 
agree, that severity of punishment should be in proportion to the 
evils arising from the offence, and the probability of its being re- 
peated.” * 

The bill passed; but it had no effect in deterring Charles 
Edward from his purpose, or in cooling the ardour of his 


* 13 Parl. Hist. 889. 


LIFE OF CHIEF JUSTICE RYDER. 


followers ; and as wise men preferred the existing system 
of government, from the superior advantages enjoyed under 
it, I suspect that the more prudent course would have been, 
by amending our laws, to have removed the unpopularity 
from the Government, — which was then so great that the 
mass of the nation looked with indifference to the result of 
the contest. 

The next speech of Mr. Attorney General Ryder trans- 
mitted to us is an extremely elaborate one, which he delivered 
against a bill introduced to prohibit insurances on French 
ships during the war. Carrying the principles of free trade 
to an extreme which startles us even in the present age, he 
contended that we should be gainers by indemnifying French 
merchants against English capture; and this proposition he 
enforced and illustrated by an immense body of statistics and 
calculations, which would now be uninteresting. Having 
shown the large profit made by insuring enemies’ property, 
he pointed out the imprudence of sacrificing this in the vain 
hope of destroying their commerce : — 

“ Like the dog in the fable,” said he, “by snatching at the 
bone we fancy we see in the water, we shall lose that which we 
now hold in our mouth. The trade of insuring we possess without 
arival; but it will soon be established in other countries, and 
our own merchants may deal with foreign insurance-companies. 
Let the King of France but talk of insurances in his drawing- 
room; let him but say it is a business no way inconsistent with 
noblesse ; let him but insinuate that he will show favour to those 
who engage in it, and the whole French nation will become 
insurers.” 

However, although he was ably supported by Murray the 
Solicitor General, the bill passed ; and, indeed, our courts 
would now consider such insurances void at common law, 
as contracts with alien enemies, and contrary to public 
policy. * 

On the death of Frederick Prince of Wales, Mr. Attorney 
Ryder had to carry through the House of Commons the bill 
for appointing the Princess of Wales Regent, with a Council 
to control her, at the head of which was the Duke of Cum- 


* 14 Parl. Hist. 128. 
R 4 


247 


CHAP. 
XXVITI. 





A.D. 1747. 
His speech 
to prove 
the expe- 
diency of 
allowing 
the in- 
surance of 
enemies’ 
ships. 


A.D. 1751. 
His speech 
on the 
Regency 
Bill. 


248 


CHAP. 
XXVII. 


A.D. 1751. 


A.D. 17538. 
His speech 
in support 
of Lord 
Hard- 
wicke’s 
Marriage 
Bill, 


REIGN OF GEORGE II. 


berland. This last part of the arrangement was very un- 
popular, and he had great difficulty in defending it. Having 
observed that the precedent now established would settle the 
practice of the constitution for the future, he thus pro- 
ceeded : — 

“J shall freely grant, sir, that a sole regent, with sovereign 
power, is more consonant to our constitution, and less exposed to 
faction, than a regent limited and restrained to act in all matters 
of great importance by the advice of a council of regency’; but will 
any gentleman say that the appointing of a sole regent with so- 
vereign power ought to be laid down as a general rule to be ob- 
served in every case of a minority? If we appoint a regent with 
a council of regency, we are exposed to the danger of faction ; if 
we appoint a sole regent with absolute power, we are exposed to 
the danger of an usurpation. But as usurpation is a danger much 
more terrible than faction, the safer general rule is, that a council 
of regency ought to be established, and that the regent be confined 
to act by their advice.” He then went over the various minorities 
which had occurred in English history since the accession of 
Henry IIL, illustrating his proposition by the manner in which a 
limited and an unlimited regency had worked; and thus con- 
cluded : — “ If a sole regent with sovereign power should now be 
appointed, I am persuaded the same course will ever after be in- 
sisted upon, till some regent, like Richard III., has convinced us 
when it is too late of the danger we incur. If I were to look no 
farther than the excellent Princess named by this bill, I would 
cheerfully intrust her with absolute sway; but I am sure she has 
too much wisdom not to excuse our refusing to pay her a com- 
pliment at the apparent risk of one of her posterity.” 

The bill passed as introduced, but never came into opera- 
tion, as George II. survived till his grandson was of age.* 

The last time that Sir Dudley Ryder ever spoke in parlia- 
ment was in supporting Lord Hardwicke’s celebrated bill “ to 
prevent clandestine marriages.” He showed at great length, 
and with much ability, the evils produced by the existing 
system of giving validity to every marriage celebrated by a 
priest in orders, in any place, at any hour, without license or 
proclamation of banns, and without the consent of parents or 
guardians; he proved that it was within the just power of 


* 14 Parl. Hist. 1023. 


LIFE OF CHIEF JUSTICE RYDER. 


the legislature to regulate the manner in which this, the 
most important of all contracts, shall be entered into; and he 
defended the several provisions of the bill which were to 
guard alike against the passions both of the young and the 
old: — 

“ We often find,” said he, “ the passion called Jove triumphing 
over the duty of children to their parents ; and, on the other hand, 
we sometimes find the passions of pride and avarice triumphing 
over the duty of parents to their children. I am persuaded that 
our ancestors would long ago have applied a similar remedy, but 
for the superstitious opinion that when a marriage between two 
persons come to the age of consent, though minors, is once 
solemnised by a priest in orders, it is so firmly established by the 
Divine Law, that it cannot be declared null by any human tribunal. 
Thank God! we have, in this age, got over such dogmas; and the 
Right Reverend Bench in the other House deserve well of their 
country for consenting to render Christianity consistent with com- 
mon sense.” 

After a furious opposition, the bill was carried; but Mr. 
Attorney ought to have seen a gross defect in it, which we 
have lately cured, — that it allowed the validity of marriages 
to be questioned at any distance of time upon an alleged 
non-compliance with its provisions, although the parties might 
have lived many years together as man and wife after they 
had come of age.* 

It must be acknowledged that Ryder’s parliamentary career 
was not brilliant, but he deserves the praise of never having 
affected what he could not accomplish, and of having, without 
envy or jealousy, confined himself to professional subjects, 
while Murray, his inferior officer, was the ministerial leader 
in the House of Commons, and was contesting the palm of 
eloquence with the elder Pitt. 

In the courts of justice, Sir Dudley Ryder, as Solicitor 
and Attorney, did the business of the Crown very efficiently ; 
but, with the exception of the trials which arose out of the 
rebellion of 1745, he was not engaged in any of permanent 
interest. In addressing the jury he studied brevity to a 
degree which astonishes us, accustomed to the long-winded 


*°15 Parl. Hist, T. 


249 


CHAP. 
XXVII. 


A.D. 17536 


250 


CHAP. 
X XVII. 


A.D. 1746. 


His prose- 
cution of 
Colonel 
Townley 
for high 
treason. 


REIGN OF GEORGE II. 


orations of modern times. The following is the whole of his 
speech (as taken by a short-hand writer) in opening the im- 
portant prosecution for high treason against Colonel Townley, 
who had proclaimed the Pretender in Lancashire, and had 
commanded a regiment of horse in his service : — 

My Lords, and you, Gentlemen of the Jury : The prisoner at the 
bar, having been deeply engaged in the late unnatural and wicked 
rebellion, begun in Scotland, and carried into the heart of this 
kingdom, in order to overset our present happy constitution in 
church and state, hath rendered necessary this prosecution against 
him. Ido not doubt but that, in the course of our evidence, we 
shall make it appear to your satisfaction that the prisoner, with 
others his confederates, did assemble in a warlike manner, and 
procured arms, ammunition, and other instruments of war, and 
composed a regiment for the service of the Pretender to these 
realms, to wage war against his present most sacred Majesty, and 
did march through and invade several parts of this kingdom, and 
unlawfully did seize his Majesty’s treasure in many places, for the 
service of their villanous cause, and took away the horses, and 
other goods, merchandise, and chattels of many of his Majesty’s 
peaceable subjects ; and that, during the said march, the prisoner, 
with other rebels, in open defiance of his Majesty’s undoubted 
right and title to the crown of these realms, frequently caused the 
Pretender’s son to be proclaimed in a public and solemn manner 
as regent of these realms, and himself marched at the head of a 
pretended regiment, which they called ‘the Manchester regiment.’ 
My Lords, I shall not take up the time of the Court in saying a 
great deal, for all that the prisoner is charged with will appear so 
full and plain, from the evidence we shall produce for the King, 
that there will not be the least doubt with the jury to find him 
guilty.” 

The prisoner’s counsel, in stating the defence, that he 
had acted under a commission from the King of France, 
* acknowledged that the Attorney General had opened the 
case with all the candour that could be expected, and had not 
exaggerated the charge beyond the bounds of humanity and 
good nature.” ‘The trial, which now-a-days would last a 
week at least, was all over in a few hours.* 

On the impeachment of Lord Lovat, the conduct of the 


* 18 St. Tr. $29. 


LIFE OF CHIEF JUSTICE RYDER. 


prosecution before the House of Lords chiefly fell on Sir 
Dudley Ryder, as one of the managers for the Commons. In 


opening the case, he distributed the facts under three heads: 


** 1. Those which happened precedent to the Pretender’s sons 
landing: 2. What happened after that time, and before the 
battle of Culloden: 3. What arose since that happy event:” — 

“ The first,” said he, “ will disclose to your Lordships a wicked 
and traitorous scheme, begun and carried on for many years, for 
bringing over the Pretender by the assistance of a foreign force, 
in which his Lordship will appear to have had a principal hand. 
The second will include the more immediate scene of action in 
the late wicked rebellion, and the particular parts which the 
prisoner took in it. The third will show him in the circumstances 
of a defeat ; and, in every part of this whole scene, he will appear 
plotting, associating, and supporting all the steps that were taken 
for subverting this happy establishment, dethroning his Majesty, 
and substituting a Popish Pretender in his room.” 

He then traced the secret machinations of the Highland 
chiefs, guided by Lord Lovat, to restore the exiled royal 
family; and he gave a lively sketch of the well-known mili- 
tary operations, from the landing of the Pretender, till the 
final overthrow of his cause, showing how the prisoner, while 
pretending to stand by King George, had sent his clan to 
fight on the other side under his son, the master of Lovat. 
Thus he proceeded : — 

“T am now come, my Lords, to that last period of time — from 
the battle of Culloden. The prisoner was waiting, not very far 
off, the event of that important day. The night after, the Pre- 
tender’s son came to Gortuleg, where the prisoner was, and had 
an interview with him. The noble Lord did not even then dis- 
avow his cause, but received him as his prince; excused his not 
joining him in person; and, after the tenderest embraces, parted 
from him as a faithful subject to a royal master. ‘The prisoner, 
as well as those who had been in open arms, was obliged to fly. 
He knew his guilt was the same as theirs, and that he deserved 
the same treatment. The rebel army, and the chiefs who escaped 
from the battle, were now dispersed; but, on the 15th of May, a 
meeting was held at Mortleg, to consider what was proper to be 
done for their common safety. The noble prisoner at the bar met 
them—not as an innocent person, to advise them to lay down 


251 


CHAP. 
XXVILI. 


A.D. 1746. 


His speech 
on the im- 
peachment 
of Lord 
Lovat. 


252: 


CHAR. 
XXVIT. 





a.v, 1746. 


REIGN OF GEORGE II. 


their arms and beg for mercy; not as a neutral person, if neu- 
trality in the cause of our King, religion, and liberty can be attended 
with a less degree of guilt; but as one involved in the same com- 
mon crime and calamity, — as a chief whose age and experience 
entitled him to the lead; and he took it. He advised them to 
raise a sufficient number of men to defend themselves against the 
King’s troops till they could make terms for themselves; he pro- 
posed that his son should muster 400 Frasers; and, there being 
35,000 louis d’or remaining of the subsidy lately received from 
France, a sum equal to twenty days’ pay for this band was paid 
to his servant. When the master of Lovat, at a subsequent meet- 
ing, proposed to surrender to his Majesty, the prisoner dissuaded 
him from it, and reflected upon him as a person of mean spirit to 
think of so dishonourable an action. He himself made off, with a 
guard of twenty soldiers, whom he took into pay for his defence. 
However, he was pursued and taken by a party sent after him by 
the Duke of Cumberland. Being asked how he could act as he 
had done after all the favours he had received from the Govern- 
ment, he answered ‘It was not against the King I acted, but the 
Ministry, who took away the independent company I had been 
trusted with. Who would have thought but that the Highland 
men would have carried all before them? If the young Pretender 
would have taken my advice, he might have laughed at the King’s 
forces: none but a madman would have fought that day. Besides, 
we were in daily expectation of farther assistance from France.’ 
When brought before Sir Edward Faulkener he did not think of 
denying his treason, but made the same open avowal of his motive, 
adding, ‘I resented the loss of my independent company so much 
that, if Kouli Khan had come, I should have been for him. Your 
King is merciful, and will remember the services I have formerly 
done to his family. I can still do greater than twenty such old 
heads as mine are worth. However, I am ready for any part 


which he may assign to me, 
. “In utrumque paratus, 
Seu versare Bolan seu certa occumbere morti, 


”»? 


« The Commons have thought this a matter worthy their inter- 
position, and therefore have taken it into their own hands, be- 
cause the prisoner has been the contriver, the promoter, and the 
conductor of the rebellion, so far as Providence suffered it to go. 
I have entered into the case so fully, that your Lordships may 
have the greatest of all satisfactions which judges can desire, the 
certainty of pronouncing a right judgment ; and as to the people 
in general, it is of no small moment that they should be enabled 


LIFE OF CHIEF JUSTICE RYDER. 


to behold in one man the pernicious schemes which, for many 
years, have been concerting between Rome, France, and un- 
natural traitors at home, — that they may see the rebellion, from 
which they have lately so severely felt, clearly traced to its source, 
and be fully convinced that whilst they are themselves enjoying 
at their ease, and too often asleep, their religion, their liberties, 
and their properties, under the protection of the best of princes, 
and the influence of the wisest constitution ever framed, they 
have enemies both abroad and within their own native country 
who are constantly awake for the destruction of all they hold dear, 
— and learn this certain truth, which should be imprinted in ever- 
lasting characters on the mind of every Briton, that there is no 
effectual security against the determined and persevering con- 
spiracies of those who contemn both divine and human laws but a 
firm and vigilant union of honest men. Any attempt to prevent, 
dissolve, or weaken such a union is little less than treason in its 
beginning, and, if not speedily crushed, it must lead to the worst 
that can happen to this land of liberty, the total destruction of the 
royal family and of the happiness we now enjoy under their 
benign sway.” * 

In the last recorded case in which Sir Dudley Ryder 
appeared as an advocate, he met with a very flagrant mor- 
tification. This was the prosecution of William Owen -for a 
libel, which the Attorney General was ordered to institute by 
a vote of the House of Commons, the party supposed to be 
libelled, in consequence of their foolish commitment of the 
Honourable Alexander Murray. In his opening address to 
the jury, he was by no means abstemious in praising his clients 
or in abusing their detractor : — 


“ The libel,” said he, “ contains charges of partiality, injustice, 
barbarity, and corruption against the House of Commons, that 
House which is the guardian of our liberties and the protector of 
all we hold dear. Every one must be shocked who reads this 
wicked—diabolically wicked pamphlet. ‘The Parliament has justly 
voted it ‘a false, malicious, infamous, scandalous, and seditious 
libel, tending to create confusion and rebellion.’ To me it is 
astonishing how it could enter into the mind or heart of man to 
write such a libel. What! shall a person appeal from the judg- 
ment of that court who are the only judges of things pertaining 
to themselves —I mean the House of Commons? An appeal! To 


* 18 St. Tr. 559. 


253 


CHAR: 
XX VIL. 


A.D. 1758. 
Signal de- 
feat of Mr. 
Attorney 
General 
and of the 
House of 
Commons. 


254 


CHAP. 
XXVII. 


A.D. 1753. 


REIGN OF GEORGE II. 


whom? Toamob! Must justice be appealed from? To whom? 
To injustice ! The writer says ‘he appeals to the good people of 
England, particularly the inhabitants of Westminster.’ The House 
of Commons are the good people of England, being the repre- 
sentatives of the people. The rest are—what? Nothing, unless 
it be a mob. And what can be ina mob but confusion? But 
the clear meaning of this libel was an appeal to violence. Gentle- 
men, whosoever reads this libel will find it the most pungent 
invective that the skill of man could invent. I will not say the 
skill, but the wit, art, and wicked contrivance of man, instigated 
by Satan. To say that this is not a libel, is to say that there is 
no justice, equity, or right in the world. If the House of Com- 
mons is not to be defended, and to have protection and relief in 
a court of law, yourselves, your homes, and your children will 
be without protection or relief. You will see, gentlemen, whether 
the evidence does not satisfy you that the libellous pamphlet 
was sold in the shop of the defendant; and, in that case, it 
will be your duty to find him guilty.” 

An Attorney General who should now make such a speech 
— denouncing the whole constituent body, or the people of 
England, as a mob, without any touch of reason or sense of 
justice — would be impeached, unless he were shut up ina 
madhouse. Even a century ago it seems to have given mortal 
offence to those to whom it was addressed. The jury, by an 
artful dodge, might have been wheedled out of their rights,— 
but they would not have been Englishmen if they had suf- 
fered themselves to be thus bullied. The sale of the pam- 
phlet in the defendant’s shop by his authority was incontro- 
vertibly proved ; yet, although the Chief Justice fully adopted 
the doctrine that the jury could not look beyond this fact, 
they took the question of libel or no libel into their own hands, 
and, to the unspeakable delight of the public, — without 
condescending to answer whether they considered the evidence 
of publication sufficient, — insisted on finding a general ver- 
dict of Nor Guiity.* 

Mr. Attorney was afraid to face the mob assembled round 
Guildhall, and concealed himself in the Lord Mayor’s closet. 
After a few hours he ventured to return to his house in 
Chancery Lane; but he found a great bonfire blazing in 


* 18 St. Tr. 1203—1230.; ante, p. 227. 


LIFE OF CHIEF JUSTICE RYDER. 


Fleet Street, and, before his hackney coach was allowed to 
pass, he was obliged to give something to drink to the health 
of the jury ;— in return for which, without knowing their 
benefactor, they threw to him a copy of the following song, 
supposed to be sung by the foreman and a chorus of jurymen, 
but actually composed by an Irish porter * : — 


“ Sir Doodley, Sir Doodley, do not use us so rudely ; 
You look pale, as if we had hilt ye: 
Sir Doodley, Sir Doodley, we shamefully sbould lye, 
Were we to say the defendant is Guinry. 


‘A fig for the Commons! Who now cares for their summons ? 
Or their votes on the press to make war? 
Murray made them look glum once by calling them ‘rum ’uns,’ 
And refusing to kneel at their bar. 


«Mr. Attorney’s grim wig, though awfully big, 
No more shall frighten the nation ; 
We'll write what we think, and to Liserry drink, 
And defy his eggs-off. Inrormation.” t 


Sir Dudley Ryder had been for some years impatient for 
the tranquillity and security of the bench, and he was soon 
after thrown into deep consternation by the death of Mr. 
Pelham, the Prime Minister, which threatened a complete 
dissolution of the Cabinet. After such a long and prosperous 
voyage, when within sight of port he suddenly found himself 
among breakers, and he was afraid of being cast away on the 
dreary shore of opposition. ‘The vessel righted, but he had 
little confidence in the new pilot, and he dreaded some fresh 
disaster. 

Not inopportunely for the Attorney General came the 
apoplexy of the Chief Justice. There was no hesitation as 
to the manner in which the vacancy was to be filled up; and, 
as soon as the necessary forms could be complied with, Sir 
Dudley Ryder took his seat in the Court of King’s Bench, 
as the successor of Sir William Lee, and was made a 
Privy Councillor. He was sworn in privately at the house 
of the Lord Chancellor, the parade of installation speeches 
having become obsolete. It was expected that he would 
be immediately raised to the peerage; but Lord Hard- 
wicke’s reluctance to have any law lord in the House of 
Peers, besides himself, still prevailed. 

* Lond. Mag. 1753. Lord Mahon’s History, iv. 27. Kneeling at the bar 


of the House of Commons never was heard of more. 
+ I presume ex-officio Information. 


255 


CHAP. 
XX VII. 


A.D. 1753. 


Trish 
porter’s 
song on 
“Sir Dood- 
ley.” 


March, 
1754. 


April 8. 


May 2. 
Ryder 
Lord 
Chief Jus- 
tice. 


256 


CHAP. 
XXVITI. 


A.D. 1745, 


REIGN OF GEORGE II. 


Lord Chief Justice Ryder’s judicial career was extremely 
brief, being only a few days more than two years. During 
this period he reputably performed the duties of his office ; 
but those who expected that he was to introduce reforms 
and improvements into the administration of the Common 
Law were disappointed, for he listlessly allowed all things to 
go on as he found them. He had no ambition to raise his 
fame above that of his immediate predecessors, and he satisfied 
his conscience by deciding to the best of his ability the cases 
which came before him, according to the antiquated routine 
which had long been condemned. His decisions are to be 
found in the Reports of Sayer and Lord Kenyon; but, 
in looking through them, I can find none which, from the 
importance of the point adjudged or the mode of reasoning 
adopted, would now be interesting. He had not to preside at 
any trial for treason or libel; and he came in for no share of 
the popularity soon afterwards enjoyed by Camden, or of the 
obloquy cast upon Mansfield. 

Resentment was excited in his mind by the consideration 
that the rank was withheld from him which had been con- 
ferred on his predecessors, Jeffreys, Parker, and Raymond, 
and which his ample fortune would have so well enabled 
him to support. The profession took part with him; and, 
feeling that their consequence was impaired by the rule 
laid down that the Chancellor was the only lawyer who 
could hope to be ennobled, loudly asserted that the public 
suffered from there being no Common Law judge permitted 
to sit in either Chamber of Parliament. All these com- 
plaints would have -been vain if the Duke of Newcastle, 
now tottering to his fall, had not wished to strengthen 
himself by making new peers. He had been out-voted 
in the House of Commons on Pitt’s Militia Bill, and 
his noble whipper-in gave him notice that neither the list of 
ministerialists in town nor the proxy-book was quite satisfac- 
tory. He immediately suggested the Chief Justice of the 
King’s Bench as one new peer; and, seeing that from the 
moderate abilities and unambitious disposition of this in- 
dividual he never could be a candidate for the chancellorship, 
or formidable from obtaining influence in a deliberative as- 
sembly, Lord Hardwicke did not resist the proposal. Sir 


LIFE OF CHIEF JUSTICE RYDER. Zot 


Dudley, pleased that his wife was to be a BaRronegss, that CHAP. 
his children were to be Honourable, and that the prophecy of ae 
his grandfather was about to be fulfilled, joyfully accepted 4.5. 1756. 
the offer, and fixed upon the title of “ Lord Ryder, Baron rasp 
Ryder, of Harrowby in the county of Lincoln.” Accord- to the 
ingly, on the 24th day of May, 1756, the King signed a war- P°***8® 
rant addressed to the Attorney General, commanding him to 

make out a patent of peerage by this name, style, and title; 

and it was agreed that the following day the new peer should 

go to St. James’s, to kiss hands on his elevation, when the 

dignity would have been considered as virtually conferred, — 
although some days more were required for the patent to 

pass the great seal. Alas! amidst the felicitations of his His sudden 
family and his friends, he was struck that very evening with 73!” 

a mortal malady, and in twelve hours they were weeping 

over his corpse. He had reached his sixty-sixth year, but, 

from a good constitution and temperance, he seemed to be only 

entering into green old age, and a considerable period of en- 

joyment and of usefulness was still supposed to be before him. 

We may judge of the sensation produced by this calamity 
from a letter of Archbishop Ryder to the widow of the 
Chief Justice, in which he says, — 

* A greater loss could not be to his family or his friends : few June 4, 
were ever so great a blessing to all that had the honour to be rena 
related to him. His kindness to me and to my nephews has been Ryder, : 
boundless : what his Majesty and the public have lost by his death 
will be testified by the universal lamentation of it. Whatever 
may be the sorrow of those who are immediately affected by it, 
their duty is to endeavour to overcome it: the living require this 
of us; and the dead, if they knew it, would grieve at our grieving 
for them.” 

A few days after, his Grace thus addressed the son of the 
Chief Justice : — 

“It is my duty to write to you, though I gave my lady your June 7th. 
mother the trouble of a letter by the last post, and can now 
do little more than mingle my tears with the flood of sorrow 
which overwhelms you on,account of the loss of your invalu- 
able father. He was ever a father to me and mine in the most 
signal acts of affection and kindness. That he is snatched away 
thus suddenly, and at so critical a juncture, has the appearance of 


VOL. Il. S) 


258 


CHAP. 
XXVIII. 


A.D- 1756. 


Expecta- 
tion that 
Sir Dudley 
Ryder’s 
peerage 
would be 
conferred 
on his son. 


June 20, 
Letter on 
this subject 
from the 
Honour- 
able 
Charles 
Yorke. 


REIGN OF GEORGE II. 


the hand of God in a very extraordinary manner, and yet the ways 
of God with man are unsearchable. Possibly he may have been 
taken from us at the time he was the ripest for the honour with 
which posterity will have him in remembrance. I would hope, 
too, that the honour intended his Lordship by his Majesty will be 
redoubled to him by its being renewed to you as a testimony of 
your father’s uncommon merit, and of his long and faithful services 
to the Crown. However this may be, and however we may be 
grieved for the loss of him, we have the comfort to hope and to 
believe that his lot in the other world is with the children of God, 
and that he is numbered with the saints.” 

It was generally expected that the son’s name would be 
inserted in the patent instead of the father’s, and that he 
would forthwith be declared Lord Ryder of Harrowby; but, 
as he was not yet of age, he could not have voted in the 
critical division which was expected, and poor old Sir Dudley’s 
“Jong and faithful services to the Crown” were already for- 
gotten. Lord Hardwicke no longer felt any jealousy upon 
the subject, but he treated it with the coldest indifference. 
By the advice of some friends of the family, a memorial to 
the King, stating the facts of the case, was prepared; and 
they proposed that the young gentleman himself should be 
presented to his Majesty, in the hopes that on this occasion 
there might be a favourable announcement of the royal will. 
The Honourable Charles Yorke, then Solicitor General, being 
applied to that he might use his good offices with his father, 
wrote the following frigid reply : — 

“ Dear Sir,—I have just seen Lord Chancellor, who is clearly 
of opinion that you had better defer being presented to the King 
till after his Majesty shall have given an answer to the memorial, 
and till after your coming of age, which I acquainted him will be 
in the beginning of next month. He thinks the memorial very 
properly drawn, and will present it some day next week. He is 
certainly your friend in it, and I wish you all possible success. 
If I can be of the least service to Lady Ryder or yourself, you may 
always command me. Nothing can exceed the respect and love 
which I bore your father, and the obligations which I owe to his 
kind friendship are such as entitle you to every return in my power. 

“Tam, dear Sir, with the greatest regard and esteem, 
** Your affectionate and faithful servant, 
“C, YORKE.” 


LIFE OF CHIEF JUSTICE RYDER. 


In the political crisis which arose from Murray’s deter- 
mination to succeed Sir Dudley Ryder, and which termi- 
nated in the resignation of the Duke of Newcastle and 
Lord Hardwicke, the Ryder memorial was forgotten, and for 
years to come the Ryder peerage was not thought of except 
among the members of the family. The good Archbishop, 
to be sure, wrote, “Possibly the change of ministry, if 
what is said of it be true, may have placed those at the 
helm who will be more desirous of serving you. The Duke 
of Devonshire, I am well assured, was a fast friend to the 
late Chief Justice, your father; I have the honour to be 
known to him, and if any solicitation of mine could be of the 
least service, I would go over to try what might be done in 
it.” 

But it was not till twenty years after, when Mr. Ryder 
had served in the House of Commons during several par- 
liaments for the borough of Tiverton, and had zealously 
supported the administration of Lord North, that he was at 
last raised to the peerage by the title of Lord Harrowby.* 

We must now go back to take a parting glance at the old 
Chief Justice himself, who, if he retained any of his human 
feelings after shuffling off this mortal coil, must have been 
rather indignant when observing the neglect with which his 
heir had long to struggle, although he might not care much 
about his own dwindling reputation. 

I have nothing more to say in his praise as a public man, 
but it should be known that in private life he displayed the 
most amiable qualities, and that no fault could be imputed 
to him, except, perhaps, that he was rather too uxorious. In 
his thirty-third year he married a charming woman, to whom 


* Unfortunately the Ryder family had a quarrel with Lord Mansfield about 
the state coach, which was to be transferred to the new functionary at a valua- 
tion, as the Lord Chancellor’s coach is still transferred. A testy note, dated 
Noy. 29. 1756, says — “ Lord Mansfield is only solicitous that Mr. Ryder may 
do what is most agreeable to himself, and as to the rest is extremely indifferent. 
But he would not, for much more than the value of the coach, have more than 
one word about such a transaction with Mr. Ryder, for whom he has the 
greatest regard, and to whom, upon his father’s account, he would be ready to 
show upon all occasions every act of civility and friendship.” I do not know 
whether the collar of S.S. passed with the coach. This gold decoration is the 
personal property of the Chief Justice ; and his family sometimes retain it as a 
memorial of their founder, and sometimes hand it over to his successor. 

s 2 


4 


259 


CHAP. 
XX VII. 


A.D. Lia6s 


Noy, 8. 


Sir Dudley 
Ryder’s 
amiable 
character 


in domestic 
life. 


260 


CHAP. 


XXVII. 


Letters 
from him 
to Lady 
Ryder. 


View of 
‘Westmin- 
Hall. 


REIGN OF GEORGE II. 


he was tenderly attached — Anne, daughter of Nathaniel 
Newnham, Esq., of Streatham, in the county of Surrey, and 
he lived with her in uninterrupted harmony and happiness. 
While she possessed a cultivated mind and elegant accom- 
plishments, she managed not only all his household affairs, 
but all his pecuniary transactions, so as*to leave him entirely 
free for his professional and official pursuits. They never 
were separated for more than a day except once. In the 
summer of the year 1742 she fell into ill health, and she was 
ordered by her physicians to Bath. He accompanied her, 
and nursed her till the approach of Michaelmas Term 
indispensably required his presence in London, while she 
remained for some weeks behind to complete her cure. 
During this interval he wrote her a letter daily, however busy 
he might be, — sometimes doing so while a trial in which he 
was counsel was proceeding. These effusions are preserved, 
and I introduce a few of them for the gratification of the 
reader who is pleased with genuine touches of sentiment and 
photographic sketches of domestic scenery. 

Having been employed by Henry Fielding to move for 
an injunction to restrain a bookseller from publishing a pirated 
edition of JoseEpH ANDREWS, and having been defeated by 
reason of an error in the jurat of the affidavits, — before being 
called upon to speak in another cause, he thus addressed 


Lady Ryder: — 
“ Westminster Hall, Saturday.* 


“« My dearest Girl, —I can’t help thinking of you in the midst 
of the noise of Westminster Hall. I have this moment sat down 
after endeavouring to rescue Jos. Andrews and Parson Adams out 
of the hands of pirates, but in vain; for this time we are foiled 
by a mistake in the attack. However, another broadside next 
week will do the business. 

* J find this place just in the same situation I left it in, —filled 
with the same reverend and learned judges and counsel, and attended 
with pretty much the same clients. 

“ The Chief Baron’s cushion is still empty, and I don’t find at 
all how it is to be filled. 





* Indorsed “ Oct. 23. 1742.” 


LIFE OF CHIEF JUSTICE RYDER. 


J am going from hence to Tooting*, and expect Molly and 
Dudley t to call me in case I can’t get away time enough to return 
to Chancery Lane by three. 

«‘ Adieu, my Best Beloved, 
“ And dearest Friend, 
D4 Re 


Three days after, he gives her an account of the extra- 
ordinary rage for theatricals then stirred up by Garrick : — 


*¢ 26th October, 1744. 

* Last Saturday the Chancellor was seen at Drury Lane play- 
house. The extraordinary character of Garrick in Lear would 
justify the presence of a bishop, especially to my Lord of Killaloo, 
who has heard that in Ireland the Chancellor and the Judges open 
the term with a play, at which, I presume, the Bishops assist.” 


The following was written by him on a most auspicious 
anniversary — which luckily fell that year on a Sunday, 
when he was left entirely free from the distractions of busi- 
ness : — 

“ Streatham, Ist Nov. 1742. 


** My Dear, —I am now here to celebrate your wedding-day. Let 
me congratulate myself and you on the happiest circumstance of my 
life. How many joyful hours had I lost if my good fortune had 
not thrown me in your way! I should not, indeed, have known 
my loss, but I might now have been lamenting another wedding, 
or sinking under the weight of solitude and indolence, without 
any end to pursue by all my labours, or satisfaction in my ac- 
quisitions. Accept, my dear, the warmest acknowledgments of a 
grateful heart for the many blessings you bestow upon me ; and, 
above all, for my dearest boy, whose mind daily opens and dis- 
covers a fund of goodness and understanding that charm me. I 
am just come from teaching him the New Testament in Latin. 
He makes his comments so naturally on every verse, that I am 
better pleased with the knowledge he treasures up than the Latin 
he acquires by it. He has found out a method of discovering the 
end of the world which neither Whiston nor any other of our 
commentators on the Revelations have hit upon. ‘ Papa,’ says he, 
‘the Bible says the end of the world will not come till the gospel 
is preached to all nations: now the Blacks and the Turks have 

* Where he had a villa. + His children. 


33 


261 


CHAP. 
XXVITI. 





Oct. 26. 
The Chan- 
cellor at 
Drury 
Lane. 


Anniver- 
sary of Sir 
Dudley 
Ryder’s 
wedding- 


day. 


262 


CHAP. 
X XVII. 


Fashion- 
able gossip. 


Perils of a 
married 
lawyer 
when living 
en garcon. 


REIGN OF GEORGE II. 


neither of them had it ; so we may be sure the world is not yet 
near its end.’ 
“ Tam, my dearest, 
‘ Yours for ever, 
ik B Me 6 

The next letter, remarkable for its lively gossip, was 
written in an evening sitting of the Court of Chancery, 
during the hearing of a cause, after Sir Dudley had dined 
with the Chancellor of the Exchequer, and had (I suspect) 
partaken very copiously of his claret. These evening sittings 
were continued till the beginning of the reign of George III., 
when they were abolished with the consent of that sovereign, 
on the avowed reason that the Chancellor himself was apt 
to appear at them not “as sober as a judge” ought to be.* 

** Lincoln’s Inn Hall, Nov. 3. 1742. 

“ My Dear, —I have received your letter, and must answer it 
now or not at all to-night. I have been to pay my compliments 
at the Prince’s court. Miss Fazackerley appeared there for the 
first time, and kissed hands. Mrs. Campbell inquired there after 
your health. She looks like a ghost, —not at all improved by 
Tonbridge. I to-day dined, by invitation, at the Chancellor of the 
Exchequer’s. It was in the same house where I used to see Lord 
Orford. How different now from what it was! — not more in the 
nakedness of the walls than the abilities and disposition of its 
owner. The Earl of Bath has just had a great windfall by the 
death of one Mrs. Smith. She was mistress to the late Earl of 
Bradford, who had settled upon her and her son an estate of about 
8000/. a year, and in case of the son’s death without issue the dis- 
position of it was given to her. The son became a lunatic, and is 
now under the care of the Court of Chancery without any pro- 
bability of recovery. The Earl of Bath had assisted the mother as 


a friend to the Earl of Bradford. She in recompence has given 


him, in case of her son’s death, the bulk of the estate. She has a 
husband, who had so nice a sense of honour, that he would not 
only have nothing to do with her while she was in that criminal 
correspondence, but since would not meddle with the wages of 
iniquity, and so left her and every thing to her own conduct. 

“IT would have you make haste to town and keep me out of bad 
hands, for J am in great danger of growing a rake whilst left to 
myself, for I have been no less than twice at the play in a week’s 


* See Lives of the Chancellors, vol. vy. ch. cx]. 


LIFE OF CHIEF JUSTICE RYDER. 


time. It’s true the immediate temptation was to see Garrick, but 
how soon I may recover my youthful taste for diversion I can’t 
say. I’m glad the Bishop is coming to town. 
“ Adieu, my dearest, 
De tag 

The following letter, written next day, ingeniously assigns 
a very innocent origin to a headache with which Sir Dudley 
was then afflicted. But we cannot place exactly the same con- 
fidence in these effusions asin Pepys’s Diary, which was never 
meant to meet even the eye of a wife, and therefore conceals 
nothing that she ought not to know. The headache might 
perhaps have been traced to a second bottle at the Chancellor 
of the Exchequer’s, in which the preceding letter indicates 
that Mr. Attorney had indulged, although he was afterwards 
to plead before the Chancellor: — 

“ Nov. 4. 1742. 

“ My Dear, — The Bishop is come very well, after a pleasant 
journey. I wish I had seen you come in at the same time ; but I 
must wait. I can’t easily believe that the excess of joy on our 
meeting will make amends for the uneasiness I feel by your ab- 
sence. Ill bear it, however, as well as I can. But you have not 
yet told me the utmost period of your stay. Let me know it, that I 
may be able to see to the end of my sorrow, and have the daily 
pleasure of counting the end of its approach. 

* You bid me tell you every post how my health stands, which 
is of more moment to me as you are interested in it. I am obliged, 
therefore, to let you know that I have had the headache all day. 
You'll expect, I know, an account how it came. I believe it was 
owing to my quitting my full-bottom and gown, without an equi- 
valent, at the Chancellor of the Exchequer’s. I am sorry to give 
you the trouble of hearing this; but I am bound to be ingenuous 
and make a true confession. I fear I shall not be completely 
careful of myself till you come and give that cheerfulness to my 
spirits which makes me think it worth while to be well, as I 
hardly do while you are absent. 

“* Adieu, thou best of women, 
« D.R.” 

The next letter accompanied the coach and four heavy 
blacks by which she was to be conveyed to London. The 
vehicle was to be four days in going to Bath, and four days 
coming back,—and there was yet no quicker transit for a 

s 4 


263 


CHAP. 
XXVII. 


How a 
lawyer 
may ac- 
count fora 
headache 
got by 
taking 

too much 
wine. 


264 


CHAP. 
XXVII. 


Departure 
of the 
family 
coach for 
Bath to 
bring back 
Lady 
Ryder. 


Sir Dud- 
ley’s joy at 
her ap- 
proach, 


REIGN OF GEORGE II, 


family; post saddle-horses were provided on the principal 
routes for cavaliers, but those who travelled in their own 
coaches were, for years after, obliged to perform the whole 
journey with their own cattle. 

“ Tuesday.* 

“My Dear, — The coach goes to-morrow morning. J am im- 
patient till it returns. We have never been separated so long. 
How do you like it? Itis a solitude very different from that 
which I had before we were united, when I did not know the hap- 
piness of such a union. 

“T am just come from the House. The great attack was not 
made to-day. I understand our enemies can’t yet agree about it. 
We, however, expect it soon, but without fear. Their strength 
is tried to-day, though in a lesser matter, A Tory petition against 
the sitting Member for Derby was presented to-day. They would 
have brought it to the bar of the House, which was debated about 
an hour, and we rejected it by a majority of 235 against 190. 
We look upon this as a stronger question against us than any they 
can make on their intended motion.+ 

“ My dear, I have the greatest satisfaction in the thought of 
seeing you so soon. Think of me, and believe that I am and 
always shall be, with the greatest tenderness, 

** Your affectionate husband, 
St GD Fo 

“P.S. Your thoughts about not dining on the road and 
making four days of it, fall in with what I wrote to you yesterday.” 


I close my specimens of this conjugal correspondence with 
an extract from the last letter he wrote to her during this 
separation, which would be received by her as she stopped 
for the night on her approach to London : — 

Friday, Dec. 3. 

“ My heart leaps for joy at the thought of the time of your 
return being so near. I can hardly think of anything else, except 
when business calls me off. We had another attack to-day by a 
motion for a Place Bill. It seems principally calculated to abuse 
Sandys and his companions, the new comers, by forcing them to eat 
their own words of the last session. However, they can digest 


* Indorsed “ Nov. 30. 1742.” 

+ It was on election petitions, the merits of which were not at all regarded 
that the strength of parties was chiefly tried, A few months before, Sir Robert 
Walpole had been turned out by an unfavourable division on the petition com- 
plaining of an undue election for Chippenham. (Jan, 28. 1742.) 


LIFE OF CHIEF JUSTICE RYDER. 


them with their places. We carried it in the negative by 221 to 
196. This you will say is not a great majority. The truth is, 
some people are hard put to it to distinguish between this session 
- and the last; others are afraid of their boroughs; others think it 
is a popular thing, and have a mind to seem patriots. So that 
many who are with us in other things deserted us here.” 

The amiable lady to whom these letters were addressed 
was deeply afflicted by the loss of her husband, the Chief 
Justice; but the disappointment in never wearing the 
coronet upon which she had received so many congratu- 
lations was no aggravation of her sufferings. Her exemplary 
piety triumphed over her grief for her bereavement, and she 
survived her husband many years. 

I have already told how their son was at last ennobled. 
His son Dudley, by a daughter of Terrick, Bishop of Lon- 
don, was a most distinguished statesman and orator, — filled 
high offices in the reigns of George III. and George IV., — 
was created Viscount Sandon and Earl of Harrowby, — 
and might have been Prime Minister if he had pleased. 
The Chief Justice is worthily represented by the present 
Karl, his great grandson, who, after having long served 
in the House of Commons as member for the important com- 
mercial constituency of Liverpool, is adding in the other 
House of Parliament to the splendour of the name he bears 
—so that old Sir Dudley must now rejoice over the entire 
fulfilment of his grandfather’s prophecy. 


265 


CHAP: 
XXVITI. 


His de- 
scendants, 


A.D, 1809. 


266 


CHAP. 
XXVIII. 


Two Chief 
Justices 

of the 
Common 
Pleas, 


Origin of 
the Willes’s, 


REIGN OF GEORGE II. 


CHAPTER XXVIII. 


LIFE OF CHIEF JUSTICE WILLES. 


BrroreE devoting myself to my last and most illustrious 
Chief Justice of the King’s Bench, Lord Mansfield, I must 
beg leave to introduce two Chief Justices of the Common 
Pleas, each of whom refused the great seal of Great Britain, 
the one being the most ambitious lawyer of the 18th century, 
and the other the least ambitious of all the lawyers recorded 
in our juridical annals, — CHIEF JUSTICE WILLEs, and 
Cuier Justice WILMot. 

I have no respect for the former, and I shall dispatch him 
very rapidly. Although a man of splendid abilities, he was 
selfish, arrogant, and licentious; and, although at one time 
there was a strong probability that he would play a very 
important part in public life (in which case an interest would 
have been cast upon his early career), he died disappointed 
and despised. Among the bright legal constellations he 
twinkles a star of the tenth magnitude, and he does not 
deserve to be long examined by the telescope of the bio- 
grapher. 

The Chief Justice himself affected to derive his name from 
VELLUS or VILLUS, and tried to connect his ancestor with the 
ARGONAUTS who carried off the GOLDEN FLEECE ; — while 
his detractors preferred the etymology of VILIS or VILLICUS, 
and insisted that if the individual of his race who first bore a 
surname was not a villein, he was not higher than the bailiff 
of the lord of a manor. In sober truth, the Willes’s were a 
respectable family of small estate, long seated in the county 
of Warwick. For centuries they had been contented to 
plough their paternal acres, occasionally sending off a younger 
son to be an attorney or a country parson; but they sud- 
denly rose into distinction, for while the “Head of the 


LIFE OF CHIEF JUSTICE WILLES. 


House ” (as he loved to call himself) was a Chief Justice, and 
almost Lord Chancellor, his younger brother sat in the House 
of Lords as a Bishop.* 

Of the lawyer, till he entered public life, it will be enough 
to relate that he was born in 1685; that he was educated at 
Lichfield Free Grammar School, and Trinity College, Oxford; 
that he was called to the bar in 1707; that from his youth 
upward he showed a wonderful combination of steady 
application to business and striking gravity of manner with 
extreme profligacy of conduct; and that his determination 
was to reach the highest honours of his profession at any 
sacrifice of money, of ease, of principle, and even of pleasure. 

His success at the bar was respectable, but not such as to 
enable him to rely on professional reputation. So he resolved 
to plunge into politics, and on the dissolution of parliament 
in 1722 he declared himself a candidate for Weymouth, long 
one of the most venal and most expensive boroughs in 
England. After a severe contest, which cost him more than 
all he had been able to save from his fees, he was returned, 
and joyfully took his seat in the House of Commons.f 

As Sir Robert Walpole had gained undisputed power on 
the death of Lord Sunderland, Willes enlisted himself under 
the banner of the new minister, and hoped to gain favour 
not only by making himself useful in parliament, but by a 
rich stock of facetious stories, in which his patron took delight, 
and which, as the second bottle was going round, he could 
bring out with redoubled effect from his usual starchness of 
demeanour. At first every thing turned up to his mind. 
Without making any dashing speech, he was serviceable to 
Government; he assisted in carrying through the House of 
Commons the proceedings against Bishop Atterbury and the 
bill for doubly taxing Roman Catholics, —and he added to 
the popularity of the Government by distantly rivalling Sir 
Robert himself, after the ladies had withdrawn, in drawing 
forth loud roars of laughter from the squires who had been 
invited to dine at Chelsea, Accordingly, before two sessions 


* The Right Rev. Edward Willes, D.D., successively Bishop of St. David’s 
and of Bath and Wells, consecrated in 1742—died in 1773. 


{ In subsequent parliaments he was returned at a small expense for the close 
borough of West Looe. 


267 


CHAP. 
XXVIII. 


Sir John’s 
early 
career, 


He enters 
parliament, 


+ and is made 


a Welsh 
Judge. 


268 


CHAP. 
XXVIII. 


Subse- 
quent dis- 
appoint- 
ments. 


Nov. 30. 
lirhetens 

He becomes 
Attorney 
General. 


March 13. 
1734. 


REIGN OF GEORGE II. 


had expired, such merits were rewarded witha “ Welsh wig; ” 
he was appointed “Second Justice of Chester,” and he 
thought the great seal within his grasp. But, afterwards, his 
patience was long and cruelly tried, and many bright gleams 
of hope were succeeded by the alternating gloom of despond- 
ency. When he had been eleven years in parliament he was 
still only “Second Justice of Chester.” Nevertheless he 
could not complain of being ill-used, for he did not expect to 
supersede Sir Philip Yorke, who had long been Attorney 
General; and although the office of Solicitor General had 
twice become vacant, he did not deny the superior claims of 
Sir Clement Wearg and Mr. Talbot. One of these com- 
petitors was removed by a premature death *, another suc- 
ceeded Lord Raymond as Chief Justice of the King’s Bench, 
and the third obtained the great seal on the resignation of 
Lord King. 

Willes at last got the step which he thought insured him 
all else that he desired;—and, to crown his present feli- 
city, at the same time that he was constituted Attorney 
General he was promoted from “ Second” to be ‘ Chief 
Justice of Chester,”—the duties of law officer of the Crown, 
and of a Judge in this County Palatine and in the prin- 
‘cipality of Wales, not being considered incompatible. 

Soon after, it was thought that the Administration was in 
danger from a coalition, brought about by Lord Bolingbroke, 
between the Tories. and the discontented Whigs. Their 
grand movement was an attack upon the SEPTENNIAL Act, 
which the Tories had always strenuously opposed, and which 
Whigs not in office, nor likely to be, although they formerly 
supported it, had lately discovered to be highly unconstitu- 
tional. In the famous debate on Mr. Bromley’s motion for 
leave to bring in a bill to repeal it, Mr. Attorney General 
Willes, afraid of being speedily shorn of his new honours, 


* From “A Brief Memoir of Sir Clement Wearg,” published in 1843, by his 
relative, George Duke, Esq., of Gray’s Inn, barrister-at-law, he appears to have 
been a most learned, eloquent, and excellent man. He died of a violent fever, 
in the prime of life, on the 6th of April, 1726, when he had been three years 
Solicitor General. He was succeeded by Talbot, afterwards Lord Chancellor. 

+ Down almost to the time when these jurisdictions were abolished, Sir William 
Garrow and Sir John Copley held, at the same time, the offices of Attorney Ge- 
neral and Chief Justice of Chester. We have now lost the professional joke of 
the prime minister baiting his rat-trap with Cheshire cheese. 


LIFE OF CHIEF JUSTICE WILLES. 


made an extraordinary exertion, and delivered a speech which 
was very much applauded. I give a few extracts from it to 
show how such topics, which still annually come before us, 
were treated a hundred years ago: — 


“ Gentlemen have been pleased to put us in mind of our ancient 
constitution; but it has been so often varied and improved, that 
they must be puzzled to fix the time when it was in that perfect 
state which we ought at present to adopt and for ever abide by. 
Are we asked to go back to the wittenagemote, or to prelates and 
barons, — without any representatives from counties, cities, or 
boroughs? or to prelates, barons, and representatives of counties, 
cities, and boroughs,—sitting together in one and the same as- 
sembly? Rather than admire the constitution when unformed 
and weak, I would admire it in its strength and vigour. There- 
fore I admire it as I find it, and I would rather go on to improve 
it than mar the improvements which it has received. Let me 
observe that at the Revolution there was nothing in the Claim of 
Rights or in the Bill of Rights about annual or triennial par- 
liaments. When we read of the advantage of ‘frequent par- 
liaments,’ we are to understand frequent sessions of parliament — 
not that the parliament is to be changed every session. We all 
know that the Triennial Bill was neither introduced nor promoted 
by the patrons of liberty or the real friends to King William’s 
government. The object of the measure was to distress that good 
prince, and the bill when passed was found to be of dangerous 
consequence to the prosperity of the nation and to the quiet of the 
subject. At last the Septennial Act passed, which is the true 
medium between the unlimited common law prerogative of the 
Crown and the other extreme of statutably extinguishing every 
parliament after it has sat. three years, whatever perils may arise 
in any particular crisis from there being no parliament, or from a 
general election. If King William had enjoyed the benefit of 
septennial parliaments, he would have carried on war and he 
would have negotiated peace with much greater advantage, he 
would have escaped the treaties for partitioning the Spanish 
monarchy which have been so much objected to, and he would 
have been better able to humble the power of France and to secure 
the happiness of this nation. I have reason therefore to say that 
the constitution has now reached its highest perfection. The 
alleged power of corrupting a parliament which sits long, we may 
know to be imaginary from the fact that King Charles II.’s Long 
Parliament, which at first was called the Pensionary Parliament, 


269 


CHAP. 
XXVIII. 


A.D. 1734. 


His speech 
against the 
repeal of 
the Septen- 
nial Act. 


270 


CHAP. 
XXVIII. 





A.D. 1734 
—1737. 


REIGN OF GEORGE II. 


- and was disposed to make him absolute, at last became so, refrac- 


tory that he accused it of a design to dethrone him, and he abruptly 
and indignantly dissolved it. Short parliaments lead to corruption. 
Corruption is not of one sort only; it appears in many shapes. 
An elector may be bribed without giving him money, and members 
of this House may be bribed without getting any place or prefer- 
ment from the Government. If, to please his borough and to 
secure his next election, a member votes against his judgment, is 
not this bribery, and bribery the most degrading and. pernicious ? 
An honourable gentleman says that septennial parliaments are 
necessary to support falling ministers. Sir, I can only say that I 
have been travelling lately in many parts of England, and, where- 
ever I have been, I have found the present ministers held in high 
estimation; insomuch that, when this parliament has sat out its 
seven years, I am convinced that another will be returned for 
seven years more, equally discerning, loyal, independent, and well- 
disposed as the present.” 

Mr. Attorney’s speech gained him much credit, although 


- the victory was chiefly ascribed to Sir Robert Walpole’s, — 


Jan. 23. 
1737. 

He is made 
Chief Jus- 
tice of the 
Common 
Pleas. 


Feb. 14. 
His disap- 
pointment 
on the 
death of 
Lord Chan- 
cellor 
Talbot. 


in which he drew such a character of Bolingbroke that 
he made the Whigs ashamed of acting under him; and by 
which, according to Coxe, he drove the disappointed in- 
triguer abroad, in despair of ever recovering any ascendancy 
in England.* 

When Willes had been Attorney General ‘three years, the 
office of Chief Justice of the Common Pleas fell vacant, and 
he accepted it, —far from suspecting that he was thereby to 
be for ever “shelved,” but considering that it would prove, 
as it had before done, a stepping-stone to the woolsack. He 
had hardly been installed in this intermediary dignity when 
he thought that his fondest expectations were to be in- 
stantly realised, all England being thrown into mourning by 
the sudden death of Lord Chancellor Talbot. To his unspeak- 
able mortification, although he had continued in the good 
graces of the Prime Minister, and still played his part in 
retailing his old stories to the country squires, adding anec- 
dotes of his own adventures, he was never once thought 
of for advancement on this vacancy. Whether Sir Robert 


* 9 Parl. Hist. 394—479.; Coxe’s Memoirs of Sir R. Walpole, p. 426.; 
Lord Mahon’s History, ii. 264--272. 


LIFE OF CHIEF JUSTICE WILLES. 


Walpole dreaded that habits and conversation which he could 
not openly censure—for they were very congenial to his 
own—might not be quite suitable to the grave magistrate 
who was to be placed in the “ marble chair” and to preside 
over the general administration of justice, I know not; but he 
immediately offered the great seal to Lord Hardwicke, then 
Chief Justice of the King’s Bench; and, upon this grasping 
aspirant trying to make too hard a bargain in demanding 
pensions and tellerships, he threatened to go to Fazakerley, 
a professed Tory lawyer and suspected Jacobite, saying, as 
he took out his watch, “It is now twelve o'clock ; if by one 
you do not agree to my terms, — by two, Fazakerley will be 
Lord Keeper, and one of the staunchest Whigs in England.” 
The treaty was instantly concluded; and very probably 
there was a secret article in it that Willes should not even be 
promoted, as he might naturally expect to be, to the office of 
Chief Justice of the King’s Bench ; for Lord Hardwicke was 
jealous of him, hated him, and wished to be succeeded by 
some safe man, like Mr. Justice Lee, who never would be 
formidable as a rival. 

Willes henceforth entirely renounced all intercourse with 
Sir Robert Walpole, and entered into a political connection 
with the leaders of opposition, particularly with Lord Carte- 
ret. When the division on the Chippenham election showed 
that a change of government must inevitably take place, he 
believed that the Chancellor would go out with the Prime 
Minister, and that his own elevation was at hand. But, to 
the surprise of mankind, Pulteney refused to take office him- 
self, and consented to the Duke of Newcastle and Lord 
Hardwicke—whom he had often abused so bitterly — still 
holding their places. 

The only game left to Willes was to try to create jealousies 
between the new section of the Cabinet and the old. With 
this view he strove to stir up Carteret to claim the premier- 
ship, and to engross all the patronage of the Government. 
But this most accomplished though most flighty statesman, 
intent on diplomatic negotiations and royal smiles, had no 
steady ambition, and neglected all those smaller cares by 
which alone party influence can be acquired or retained. On 


271 


CHAP. 
XXVIIL- 


Oh i a feeire 


A.D. 1742, 
His in- 
trigues 
with Lord 
Carteret. 


272 


CHAP. 
XXVIII. 





A.b. 1746. 


A.D. 1756. 
He is made 
First Lord 
Commis- 
sioner of 
the Great 
Seal. 


November. 


REIGN OF GEORGE II. 


one occasion, Willes calling upon him to apply for an ap- 
pointment, “ What is it to me,” he cried, “ who is a judge, 
and who isa bishop? It is my business to make kings and 
emperors, and to maintain the balance of Europe.” “ Then,” 
answered the Chief Justice, “those who want to be judges 
or bishops will apply to those who will condescend to make 
it their business to dispose of judgeships and bishoprics.” * 
Willes, in fulfilment of his own prophecy, for some time 
cultivated the Pelhams, but found that they were unalterably 
attached to Lord Hardwicke ;—and then he professed himself 
an adherent of Pitt. In this weary round he often sank into 
low spirits, and the sensual gratifications which had soothed 
his political disappointments began sadly to pall upon him. 
At last, the dreams of power, in which alone his imagination 
now luxuriated, seemed actually fulfilled. In truth, the grand 
object of his ambition was placed within his reach, and he 
lost it by his own gross mismanagement, so that he was left 
without the consolation of complaining of his evil fortune. 
When the Duke of Newcastle and Lord Hardwicke were 
driven to resign, the ministers who, for a short time, inad- 
hesively formed the new cabinet under the nominal leadership 
of the Duke of Devonshire were favourably inclined to Sir 
John Willes, and adopted him as their principal legal associate, 
relying upon him to counteract the machinations of the VoL- 
PONE, who, he said, had unjustly kept him out of the office 
of Chancellor for twenty years.| But, on account of the 
prejudices of the King, who had falsely been told that the 
Chief Justice of the Common Pleas had in him as little daw 
as morality, there was a serious difficulty in at once con- 
ferring upon him the dignity to which he aspired. An arrange- 
ment was made that the great seal should be a short time in 
commission, that he should be first commissioner, and that it 
should, ere long, be transferred to his sole custody, with the 
title of Lord Chancellor, or Lord Keeper, and a peerage. 
Accordingly, on the 19th day of November, 1756, he took 


* Horace Walp. Mem. of Geo. II. i. 147. 

+ “Lord Chief Justice Willes was designed for Chancellor. He had been 
raised by Sir Robert Walpole, though always browbeaten by haughty Yorke, 
and hated by the Pelhams, for that very attachment to their own patron. As 
Willes’s nature was more open, he returned their aversion with little reserve, 
He was not wont to disguise any of his passions.” — Walp, Mem. Geo, IT. i. 76. 


LIFE OF CHIEF JUSTICE WILLES. 


his seat in the Court of Chancery, and saw the mace and the 
embroidered purse containing the great seal lying before 
him ; but le was galled by the thought that he enjoyed only 
divided empire, for Sir Sidney Stafford Smythe was on his 
right hand, and Sir John Eardley Wilmot on his left, with 
co-ordinate authority. 

Lord Chief Commissioner Willes did the business of the 
court with much ability, and a general expectation was en- 
tertained that he was to turn out an eminent equity judge. 
He likewise reformed the scandals of his domestic establish- 
ment, and every obstacle to his elevation seemed removed. 

The horizon was for a time overcast, on the dismissal of 
Mr. Pitt and the dissolution of the Duke of Devonshire’s 
short and ill-concocted. government; but a brighter sun- 
shine irradiated the steps of Sir John Willes when the fa- 
mous coalition was completed between Mr. Pitt and the 
Duke of Newcastle. These chiefs, without feeling any at- 
tachment to him, were both contented, for the sake of 
convenience, that he should be admitted into the cabinet, and 
should be created Lord Chancellor. ‘To please the King, 
they first offered the great seal to Lord Mansfield, knowing 
full well that he would decline it; and likewise to Sir John 
Eardly Wilmot, from whom they were sure to receive a 
similar answer, though for very different reasons. ‘The tender 
was then to be made in due form, and with the King’s express 
authority, to Sir John Willes; but his Majesty was, as yet, 
in very ill humour, on account of his closet being stormed by 
the “ Great Commoner,” and he positively declared that no 
new peerage should then be created. The First Lord 
Commissioner was much nettled by hearing that the great 
seal had been hawked about when he had considered that 
it was his own exclusive property. Further, knowing 
how it had been declined by all who were regarded as ca- 
pable of holding it, he gave himself very haughty airs, 
thinking that the game was irrevocably in his own hand. 
Therefore, under the disguise of disliking the proffered eleva- 
tion, he talked of the comfort and security of the ‘ cushion 
of the Common Pleas,” dwelt upon the sacrifice which he 
was called upon to make, and positively refused to accept the 

VOL. II. a; 


273 


CHAP. 
XXVIII. 


Nov. 19. 
1756. 


He loses 
the Chan- 
cellorship 
by his own 
mis- 
manage- 
ment, 


274 


CHAP. 
XXVIII. 





A.D. 1756. 


REIGN OF GEORGE Ii. 


great seal unless he had the promise of a peerage, which had 
been given to every Lord Chancellor and Lord Keeper since 
Sir Orlando Bridgman in the reign of Charles II.* The 
conference was broken up; but Willes, though very indignant, 
was perfectly confident that his terms must be acceded to, 
and he remained at home in the belief that he should speedily 
receive a summons to be sworn as Chancellor, with a request 
to know what title as a baron would be agreeable to him. 
Mr. Pitt, who had secured to himself unlimited power to 
carry on the war according to his own views, and antici- 
pated his coming glory, was unwilling to run the risk of 
quarrelling with the King upon such a paltry point as a legal 
peerage ; and, instead of making any further effort to gratify 
Sir John Willes, he offered the great seal to Sir Robert 
Henley, who, belonging to the Leicester House party, had 
hitherto been reckoned an enemy, but who was not likely to 
stand out for conditions, reasonable or unreasonable, and who, 
from his very moderate abilities, could never be formidable, 
Henley, who had not expected such an offer from the new 
ministry any more than to be made Archbishop of Canterbury, 
joyfully jumped at it, without saying a word about peerage, 
pension, or tellership; and the arrangement was completed 
the very same morning that it was first proposed. The Lord 
Keeper elect then thought that he could not do less than 
announce his appointment to the First Lord Commissioner, 
who had the custody of the great seal, and courteously arrange 
with him as to the convenient time when the bauble might 
be transferred to him. Willes was at his villa, walking about 
in the garden, still chafed by the affront which he considered 
he had received, but still not doubting that the proper amende 
would be made to him. He knew that Henley could not 
well be the messenger for that purpose, but he had not the 
most distant conception that his visiter had a personal 


* He chose to forget Sir Nathan Wright in the reigns of William III. and 
Queen Anne. 

t A story was circulated, but I believe without any authority, that he had 
fixed upon tbe title of Lorpv Corcuos that he meant to have the Argo galley 
for his crest, a “fleece or” to be added to his arms, and two argonauts for his ~ 
supporters. Horace Walpole merely says, in his usual epigrammatic style, — 
** Willes proposed to be bribed by a peerage to be at the head of his profession ; 
but could not obtain it.” (Mem. Geo, II. ii, 226.) 


LIFE OF CHIEF JUSTICE WILLES. 275 


interest in the controversy ; and, without leaving any opening _CHAP. 
for the intended communication, he burst out into a state- aie 
ment of his grievances, thus concluding: “ Would any man g.one he. 
of spirit have taken the seals under such circumstances? tween Sir 
would you, Mr. Attorney?” Henley, thus appealed to, ei ate 
gravely answered, “ Why, my Lord, I am afraid it is rather Sir Robert 
too late to enter into such a discussion, as I have now the aa 
honour of waiting upon your Lordship to inform your Lord- 

ship that I have actually accepted them.” 

Poor Willes never held up his head again ;—and he re- Sir John 
ceived another blow, which“utterly crushed him, when Lord eee 
Keeper Henley, preparatory to the trial of Lord Ferrers for hearted. 
murder, was, without solicitation, created a peer, that he 
might preside on the occasion as Lord Steward. 

The death of George II., the prelude to so many changes, Mareh 27. 
brought no consolation to the heart-broken Chief Justice; for 17°: 
Henley, from his long connection with Leicester House, was 
a personal favourite with the new Sovereign, and was not 
only allowed by him to get tipsy after dinner instead of 
holding evening sittings, but was raised to be Lord Chan- 
cellor from being only Lord Keeper, and was created Earl of 
Northington.* Friends in vain attempted to soothe the 
wretched Chief Justice, by reminding him of the vanity of 
worldly greatness, by pointing out to him that he ought to 
be satisfied with the measure of prosperity he had enjoyed, 
and by advising him, in estimating his success in life, to 
think rather of the many competitors whom he had surpassed 
than of the few who had been enabled to surpass him. But 
he answered in the words of Sir Christopher Hatton to 
Queen Elizabeth, “ All will not do: no pulleys will draw up 
a heart cast down.” For several terms before his death he 
was unable to go into court. He languished till the 15th of 
December, 1761, when he expired at his house in Blooms- Death of 
bury Square, in the 76th year of his age. He was buried ae ha 
with his ancestors in the family vault at Bishop’s Ickington, 
in Warwickshire. 

I am afraid I may be blamed for neglecting his judicial His judi- 


; o. : . . . . ial deci- 
decisions, but I cannot discover any important points which jio,.°" 


* Lives of the’ Chancellors, vol. y. ch. exl. 
on 


276 


CHAP. 
XXVIII. 





AsDe Lio’ 


REIGN OF GEORGE II. 


he ruled, although he presided for so long a period in 
one of the superior courts in Westminster Hall. ‘There is 
said to have been very little business in the Court of Common 
Pleas in his time; a circumstance thus accounted for by 
Horace Walpole : — 

“ He had great quickness of wit, and a merit that would atone 
for many foibles—his severity to, and discouragement of, that 
pest of society, attorneys. Hence his court was deserted by them, 
and all the business they could transport carried into Chancery, 
where Yorke’s filial piety would not refuse an asylum to his father’s 
profession.” * 

I believe that, notwithstanding his immoralities, he was a 
sound lawyer, that his administration of justice was pure and 
impartial, and that his fame as a magistrate would have been 
splendid in proportion to the opportunities enjoyed by him 
of showing his powers and acquirements. He either had 
extraordinary authority with his puisnies, or extraordinary 
discretion in yielding to the best opinion propounded by any 
of them and in persuading the others to acquiesce init. A 
case occurring in which the Court was divided, he said, “I 
think myself unfortunate whenever I differ in opinion with 
any of my brethren: however, I have the pleasure to reflect 
that, in the twenty years I have sat here, this is but the 
third time that there has been any difference of opinion be- 
tween any of us.” They appear to have been unanimous 
ever after. + 

Chief Justice Willes sat along with the other Judges on 


* Mem. Geo. If. i. 76. This is a spiteful allusion to Lord Hardwicke 
having been the son of an attorney. But the suggestion that the business 
which ought to have come into the Common Pleas was done in the Court of 
Chancery, shows that the memoir-writer is entitled to very little weight on such 
a subject. 

+ The case referred to is Buxton v. Mingay, 3 Wilson, 70., well known and 
very distasteful to medical men; the question being, “ whether a surgeon is an 
inferior tradesman within the meaning of 4 & 5 W.&M. e 23. s. 10.2” 
The Chief Justice took the liberal side, saying — “I am clearly of opinion the 
legislature could never intend that a surgeon is ‘an inferior tradesman, or ‘a 
dissolute person ; ’ although he may sport without being qualified to kill game,” 
But said Bathurst, J., — “I can never be of opinion that the legislature in-« 
tended to permit every master of any little mechanic trade to neglect his trade 
and go a-hunting. I am of opinion that every tradesman is inferior who is not 
qualified, and that is the only line we can draw between inferior and superior.” 
Clive, J., concurred with him. — [ know not in what category they would have 
placed “an unqualified judge ;” but I should call him “ an inferior tradesman.” 


LIFE OF CHIEF JUSTICE WILLES. 


the trial of the rebels at St. Margaret’s Hill, Southwark * ; 
but he was not called upon to take any leading part, — Lee, 
Chief Justice of the King’s Bench, being present; and he 
had nothing to do with any other state prosecutions. 

The most interesting case which ever came before him was 
that of Elizabeth Canning, which divided and agitated the 
country almost as much as the Catholic Question or the Reform 
Bill in more recent times. He very sensibly agreed with 
the jury, who convicted her of perjury; he refused her a 
new trial, and he proposed that she should be transported 
beyond the seas for seven years. Generally, the Lord 
Mayor and aldermen, who are in the commission at the Old 
Bailey, implicitly submit to the opinion of the judges, as 
well in awarding punishment as in disposing of questions of 
law; but, on this occasion, Alderman Sir John Barnard 
moved an amendment, “that the punishment should be only 
six months’ imprisonment,” when a poll was taken, and the 
sentence proposed by the Chief Justice was carried by a 
majority of eleven (including six judges) against eight (who 
were allaldermen). Willes appears to have conducted himself 
on this occasion with firmness, good temper, and dignity. t 

He did nothing to wipe off the reproach cast upon the 
English bar for a contempt of literature; for he not only 
never wrote a page for the press in prose or rhyme, but he 
did not at all mix with men of letters, and his talk was either 
about law or lewdness. I am sorry to say that the ac- 
counts handed down to us of his private life are lamentably 
unfavourable as far as morality is concerned. Even ac- 
cording to the low standard which then prevailed, he was 
grossly peccant; and, however little censorious the age 
might be, his conduct seems to have been severely con- 
demned. Although a married man, with a grown-up family, 
there were violations of decorum under his own roof which 


el Gate rer ao Oe 

t 19 St. Tr. 262—694, This is one of the most extraordinary cases of 
popular delusion on record. Although the romantic story which Elizabeth Can- 
ning had told of being stolen by a gipsy woman, whom she tried to hang for the 
purpose of concealing her own elopement with a lover, was disproved by the 
clearest and most irrefragable evidence, and by the wholly contradictory accounts 
which the girl herself had given of it, more than half the nation stood up for, 
and believed in, her innocence; and innumerable pamphlets were published for 
her, as well as against her. 


Tro 


277 


CHAP. 
XXVIII. 


A.D. 1746, 


a.v. 1753. 


His con- 
duct on the 
trial of 
Elizabeth 


Canning. 


His private 
life. 


278 


CHAP. 
SAVE: 





His de- 


scendants. 


REIGN OF GEORGE II. 


transpired and gave very general offence. Hvery memoir. 
writer who notices him gives the following anecdote, which, 
therefore, I may not omit. A dissenting clergyman, shocked 
by the rumours which he heard of Lord Chief Justice 
Willes’s domestic establishment, called to remonstrate with 
him, and, if possible, to stir him up to repentance. After 
some allusions, which, though intelligible enough, the Chief 
Justice pretended not to understand, this dialogue ensued : — 
Minister: **'To come to the point, then, my Lord, they say 
that one of your maid-servants is now with child.” Chief 
Justice: “ Whatis that tome?” Minister: “ But, my Lord, 
they say that she is with child by your Teordebirile Chief 
Justice: “What is that to you?”™ 

John, his.eldest son, sat in several parliaments for Ayles- 
bury and Banbury, but gained no distinction; and Edward, 
his second son, who was bred to the bar, although for some 
time Solicitor General and a Puisne Judge of the King’s 
Bench, was of slender intellect, insomuch that once, when 
pleading a cause, and being checked for wandering from the 
subject, he exclaimed, “I wish you would remember that I 
am the son of a Chief Justice;” upon which old Mr. Justice 
Gould answered, with much simplicity, “ Oh, we remember 
your father, but he was a sensible man.” 

Chief Justice Willes’s heirs in the male line have long 
been extinct, but many distinguished persons still flourishing 
are descended from him through females. If by good luck he 
had actually reached the woolsack, this descent would have 
been considered a great honour; but it is difficult to say why 
there should have been such a difference merely from his having 
pronounced a certain number of equitable decrees, good or 
bad, and having been commemorated in several volumes bound 
in calf-skin and entitled “ Reports TEMPORE Lorp CHAN- 
CELLOR WILLEs.” Had he suspended his claim to a peerage, 
all this glory, by which the eyes of lawyers are dazzled, 
would have been showered down upon him. 


* Horace Walpole, who relates the story, says that, in addition to “an un- 
bounded passion for women,” he was “notorious for gaming ;” but I do not 
find this imputation cast upon him by any other writer, and it is wholly incon- 
sistent with his regular application to business. See Mem. Geo. IIL., i. 76. 


LIFE OF CHIEF JUSTICE WILMOT. 


CHAPTER XXIX, 


LIFE OF CHIEF JUSTICE WILMOT., 


Witmor, a succeeding Chief Justice of the Common Pleas, 
enjoyed the remarkable distinction of being a lawyer without 
ambition, and more than once refused the great seal, — not 
from any haggling about the terms on which he should accept 
it, nor from any dread of its precarious tenure, or calculation 
that he might enjoy more power and wealth by remaining in 
the position which he occupied, but from a genuine contempt 
of power and of wealth as well as of titles, and an ardent love 
of leisure, repose, and obscurity. Although he certainly was 
altogether free from the last infirmity of noble minds, and of 
the sin by which the angels fell, we may lament that he 
never displayed those high aspirations and heroic efforts to 
be of service to others which make ambition virtue. 

John Eardly Wilmot was the second son of Robert Wil- 
mot, a gentleman of respectable family and moderate fortune 
in the county of Derby. His mother was daughter and co- 
heiress of Sir Samuel Murrow, a Warwickshire baronet. 
He was born on the 16th of August, 1709, Having re- 
ceived the first rudiments of his education at a school in 
Derby, he was sent to the free school at Lichfield, under the 
tuition of Mr. Hunter, who is celebrated for having flogged 
seven boys who afterwards sat as judges in the superior 
courts at Westminster at the same time.* Samuel Johnson, 
who had likewise been subjected to his flagellation, gave this 
account of him: — “ The head master was very severe, and 
wrong-headedly severe. He used to beat us unmercifully ; 


* Among these, besides Wilmot, were Lord Chancellor Northington, Sir 
Thomas Clarke, Master of the Rolls, Chief Justice Willes, and Chief Baron 
Parker. Lord Mansfield is generally included in the list; but he never saw the 
city of Lichfield tili he had been called to the bar. 


t 4 


279. 


CHAP. 
XXIX. 





Singular 
character- 
istic of 
Lord Chief 
Justice 
Wilmot, 


His birth 
and edu- 
cation. 


280. 


CHAP. 
XXIX. 





Johnson 
and Gar- 
rick his 
school- 
fellows. 


A.D. 1724. 


REIGN OF GEORGE II. 


and he would beat a boy equally for not knowing a thing or 
for neglecting to know it. He would call up a boy and ask 
him Latin for a candlestick, which the boy could not expect 
to be asked. While Hunter was flogging his boys un- 
mercifully, he used to say, ‘And this I do to save you from 
the gallows.’ ”* However, under such harsh discipline young 
Wilmot, like young Johnson, became an excellent Latin 
scholar, and was imbued with a love of learning. It is re- 
markable that, although they were several years class-fellows 
at Lichfield, there never seems to have been the slightest 
intercourse between them in after-life ; but the Chief Justice 
used frequently to mention the Lexicographer as “a long, 
lank, lounging boy, whom he distinctly remembered to have 
been punished by Hunter for idleness.” 

When David Garrick, who was at the same time a very 
little boy in the lowest form, made his first appearance in 
Goodman’s Fields, in October, 1741, Wilmot went to ap- 
plaud him, and, having often afterwards gone to admire him 
in his various parts, was present at his last performance at 
Drury Lane in June, 1776, when he took a final leave of 
the stage; but there was no private intimacy between them, 
notwithstanding David’s passion for legal dignitaries, which 
made him pride himself so much upon his friendship with 
Lord Camden and Lord Mansfield.t This was probably 
Wilmot’s fault, for he was not only afraid of being dis- 
tinguished himself, but he wished to avoid those who had 
gained distinction. 

After he had been some years under Hunter at Lichfield, 
the better to prepare him for the University, he was re- 
moved to Westminster School; and here he applied diligently 
to his books, without ever mixing in the amusements of his 
schoolfellows. 

He spent the next four years as a recluse student at Tri- 
nity Hall, Cambridge. His ruling passion was to enter the 
Church, in the hope of obtaining a small living, and spending 


* Boswell, i. 21,22. Johnson had so high an opinion of the good effects 


of such severity, that when he heard of a schoolmaster having abolished flogging, 
he exclaimed, “I am afraid that what his boys gain at one end they will lose 
at the other.” 


t Boswell, iii. 336, 


LiFE OF CHIEF JUSTICE WILMOT. 


his days ina remote part of the kingdom, conversing only 
with the peasants who might be under his pastoral care. His 
father, however, who appreciated his vigorous talents and his 
solid acquirements, would by no means agree to this scheme, 
and insisted on his entering the profession of the law. The 
dutiful son submitted, though reluctantly, and, before he left 
Trinity Hall, was initiated in the Roman Civil Law—a study 
for which this place of education has been always renowned, 
and to which he afterwards ascribed his proficiency in the 
Common Law of England. 

In the meanwhile he kept terms in the Inner Temple, and 
after three years’ residence there he was called to the bar. 
We are left entirely in ignorance of the plan of study which 
he pursued, except that it was solitary; but we know that, 
without going into an attorney’s office, or attending much in 
court, or appearing at the “ Readings,” which were still kept 
up, he rendered himself a consummate jurist. Instead of 
being vain of his acquirements, he was earnestly desirous of 
concealing them; asif afraid that the attorneys, hearing of 
his familiarity with black-letter learning, should send him 
retainers.* He was exceedingly successful in gaining his 
wishes, and for many years he was allowed to remain un- 
molested. But going the Midland Circuit, in spite of all his 
efforts he had a little business from family connections in his 
own county: avoiding display as much as possible, he was 
on several occasions compelled to show what there was in him, 
—and by and by, at the Derby Assizes, he was in every 
cause. Still he contrived to preserve his obscurity in Lon- 
don, tiil, arguing some demurrers and new trials in causes 
from his circuit, he was at last betrayed to Westminster 
Hall as a deep lawyer and powerful advocate. 

Sir Dudley Ryder, the Attorney General, thereupon ap- 

* There was a valued friend of mine, now no more, who went the Oxford 
Circuit for years, pour passer le temps, but who had a horror, which was well 
known, of being professionally employed. At last he affronted an attorney by 
making him, rather unceremoniously, surrender a place in court when a very 
interesting trial was coming on, saying that “ barristers only were entitled to 
sit there.’ The retreating attorney was heard to mutter, “I will haye my 
revenge of him.” So, the same night, he sent a brief in an important cause to 
his antagonist; who returned it with a message that he had been sent for on 


urgent business to London. The frightened barrister left the assize town early 
next morning, and never again appeared upon the circuit. 


281 


CHAP. 
X XIX. 


June, 1732. 
He is 
called to 
the bar. 


His dread 
of being 
known or 


employed. 


A.D. 1742, 


282 


CHAP. 
X XIX. 


A.D. 1742 
—1752. 
He be- 
comes 

« Devil” to 
the At- 
torney 
General. 


He refuses 
asilk gown, 
the ap- 
pointment 
of King’s 
Serjeant, 
and a seat 
in parlia- 
ment. 


He is 
counsel for 
the de- 
fendant in 
a crim. con. 
cause. 


REIGN OF GEORGE Il. 


+ 


pointed him “ Treasury Devil;” and, deriving important aid 
from his services, and being very desirous to bring him forward, 
mentioned him to the Lord Chancellor as a man who might 
be an ornament to the profession, and would one day show 
himself qualified for the highest judicial station. In con- 
sequence he was offered a silk gown. Secretly resolved 
to refuse it, he wished to have some countenance in the 
opinion of a friend whom he pretended to consult, —and to 
whom, after very clearly disclosing his inclination, he said : 
“Consider it well, and tell me what you think of it, for 
when I have once hoisted the sail I cannot take it down 
again; therefore it requires a proper consideration and di- 
gestion in every respect. The withdrawing from the eyes of 
mankind has always been my favourite wish ; it was the first 
and will be the last of my life.” His friend advised him ‘* to 
hoist the sail, sure of a trade wind ;” but, against all remon- 
strances, he said he would not go within the bar to contend 
with the King’s Bench leaders. It was then proposed to him 
that, if he would take the coif, he should immediately have 
the rank of King’s Serjeant; the encouraging remark being 
added, that ‘in the drowsy confines of the Common Pleas 
he might remain without any unpleasant collision or noto- 
riety.” But he declared his immutable determination “ to 
live and die in a stuff gown.” * 

He was once, sorely against his will, obliged to lead for 
the defendant in an action for crim. con. falsely brought 
against an old schoolfellow, who insisted on having him for 
his counsel. As the trial proceeded, he got over his nervous- 
ness, and delivered an excellent address, which carried the 
verdict. The parties living near Lichfield, David Garrick 
took a lively interest in the result, and attended in court, 
planting himself in a snug corner where he expected to re- 
main unobserved. The following is the account he delivered 
of the performance of his old schoolfellow :— 

“ There appeared much contradiction and confusion in the evi- 
dence given by the witnesses, till at length rose Mr. Wilmot, who 
immediately explained the whole in so clear and animated a man- 


* Some accounts say that he called this his Domrno, and that, like Rabelais, 
he repeated the text  Beati sunt qui moriuntur in Domino.” 


LIFE OF CHIEF JUSTICE WILMOT. 


ner as to charm as well as inform every one who heard him, I 
was delighted with the wit and sprightliness with which he un- 
ravelled the affair, — pluming myself upon being quite private and 
unnoticed in so great a crowd, and little thinking that I should be 
soon brought upon the stage myself. But the counsel, having 
developed the plot which had been laid against his client, observed, 
‘In short, gentlemen of the jury, it is nothing more than the 
story of The Intriguing Chambermaid and The Lying Valet. * 
And, immediately casting his sparkling eye upon me in my retired 
corner, in a moment he drew the notice of the whole Court upon 
me, and I thought I should have sunk into the earth.” 

Horace Walpole relates, that, appearing at the bar of the 
House of Commons as counsel in the Wareham election, he 
was reprimanded by Pitt, who said that “he brought with 
him the pertness of his profession ;” and that, being prevented 
by the Speaker from replying in his own vindication, he 
threw down his brief, and declared that “he never would 
plead there again.” But I doubt whether Wilmot ever was 
in this line of practice, and I am convinced that he was not 
the man to wish to gain éclat by such a conflict. 

We certainly. know that he had the opportunity of revenge 
if he felt injured, but that he declined it. An offer was made 
to him of a seat in the House of Commons free of expense. 
Such a lucky chance — although lawyers, when Queen Mab 
gallops over their fingers, dream of it still more than of fees 
—he despised. He equally disliked the notion of making a 
speech either as a patriot or as a courtier: he might have 
remained silent in the House, but he foresaw that his health 
would be proposed as one of the members for the county, 
and that wherever he appeared he would be asked for a frank. 
The notion suggested to him that parliament might speedily 
make him a law officer of the Crown, filled him with con- 
sternation. 

For ever to avoid all such perils and solicitations, he now 
took the decisive step of abandoning Westminster Hall alto- 
gether, and settling in his native county as a provincial 
counsel, —- which, as he had been disappointed in his wish of 
being a country curate or vicar, offered him the prospect of 


* These two farces, written by Garrick, were then acting with great applause. 
t Mem. Geo. II., ii, 107. 


283 


CHAP. 
X XIX. 





A.D. 1752 
—1754, 


A.D. 1754, 
He retires: 
into the 
country as 
a provincial 
counsel, 


284 


CHAP. 
X XIX. 





A.D. 1754, 
1755. 


He is ap- 
pointed a 
Puisne 
Judge of 
the King’s 
Bench, 


REIGN OF GEORGE II. 


almost equal seclusion. His father had left him a small 
patrimony, producing some hundreds a year; and he had 
married Sarah, the daughter of Thomas Rivett, Esq., of 
Derby, afterwards representative of that borough in parlia- 
ment, with whom he had received a small portion yielding 
a few hundreds more.* Accordingly, he sold his chambers, 
took a house in Derby, and settled there with his family, never 
more expecting to see persons of more worship than the 
mayor of the town, or churchwardens who might come to 
consult him respecting the settlement of a pauper. 

Near a twelvemonth passed over him and found him con- 
tented and happy in this retreat, — when, one fine spring 
morning, he received official information that his Majesty had 
been pleased to appoint him a Justice to hold Pleas before 
his Majesty himself — or, in other words, a Puisne Judge of 
the Court of King’s Bench. This had been preceded by a 
rumour, which had reached Derby, that such an appointment 
was in contemplation; but this rumour he had wholly dis- 
regarded, as he not only never had solicited the appointment, 
but he had never been consulted about it, and it had never 
entered his imagination. 

At first he declared that nothing should induce him again 
to revisit the smoke and noise of London, — but being told 
that, independently of all consideration of his increasing 
family, it was his duty to submit himself to the King’s 
pleasure and to serve the public according to the best of his 
ability, he consented to allow the proposed honour to be 
thrust upon him. This was the doing of Sir Dudley Ryder, 
now Chief Justice of the King’s Bench, who, on the vacancy 
occasioned by the death of Sir Martin Wright, was anxious 
to have by his side his old Devin, in whom he so much con- 
fided. Accordingly, in Hilary Term, 1755, Wilmot, having 
been called Serjeant, and knighted, took his seat as one of the 
Judges of the Court of King’s Bench. 


* This marriage took place in April, 1743, wh 
Bishop of Worcester, then binetylewet years of aie, writled Gn 
future Chief Justice, says, — “I am much pleased that Mr. Eardl Wilmot I 3 
chosen a wife whose character you approve: ’tis an argument ‘of his od 
sense that he looks not after money in the first place; for, if God gives hi iif 
and health, he cannot fail of making his fortune.” sald yee ee 


LIFE OF CHIEF JUSTICE WILMOT. 


The appointment, although grumbled at by some pert 
practitioners who thought they were slighted by being passed 


over, was soon justified by the “admirable manner in which , 


the new Judge performed his duties. As unostentatious as 
ever, he still strove to shrink from observation; but, at times, 
he, in spite of himself (as it were), delivered pithy and lumi- 
nous judgments,—and often it was observed that, by a hint, 
a whisper, or a look, he guided his brother judges— insomuch 
that, like one of his predecessors, he was compared to the 
helm which, itself unseen, silently keeps the vessel in her 
right course. 

Not insensible to the respect which he created and the 
service he rendered, he was nearly reconciled to his new 
mode of life, when he was thrown into deep distress by the 
sudden death of his friend Lord Chief Justice Ryder while 
a patent was passing for ennobling him. 

A judicial crisis followed, which lasted some months; Mr. 
Murray, the Attorney General, claiming the office of Chief 
Justice, and the Duke of Newcastle trying, by solicitations 
and bribes, to keep him in the House of Commons. During 
this interregnum Sir Eardly Wilmot wished earnestly that he 
were again a provincial counsel in his small house at Derby, 
laying down the law to parish officers; for he was obliged 
often to take the lead in the Court of King’s Bench, and, 
gaining great credit, notwithstanding his desire to be quiet, a 
rumour was spread, which reached him, that if Murray could 
be prevailed upon to forego his claim he himself was to be 
promoted to be Chief Justice. The two senior puisnies were 
Sir Thomas Denison and Sir Michael Foster, and they, though 
respectable men, were nearly disabled by age and infirmity. 

To Wilmot’s unspeakable relief, Murray prevailed, and, 
under the title of Lord Mansfield, took his place as Chief 
Justice of the Court of King’s Bench. These two profound 
lawyers and accomplished scholars, although of essentially 
different temperament, always cordially co-operated in the 
discharge of their judicial duties; and Wilmot, instead of 
feeling any envy, was delighted that he was at liberty to act 
a very subordinate part. 

He had soon to encounter anew the perils of promotion. 


285 


CHAP. 
XXIX, 


A.D. 1755, 
1756. 


May 25. 
1756. 


Nov. 11. 


286 


CHAP. 
XXIX. 


He isa 
Commis- 
sioner of 
the Great 
Seal. 
Nov. 19. 
1756. 


His first 
refusal to 
be Chan- 
cellor, 
June 30, 
1757, 


REIGN OF GEORGE II. 


On the resignation of Lord Hardwicke, the great seal was 
put into commission, and he was named as a commissioner 
along with Lord Chief Justice Willes and Sidney Stafford 
Smythe. He had never drawn a bill or answer in Chancery 
in his life, — but he was intimately acquainted with the Civil 
Law, and had scientifically studied every branch of English 
jurisprudence. All other cares being laid aside, he now de- 
voted himself to Equity; and the old draughtsmen were 
obliged to acknowledge that, considering his defective train- 
ing, he seemed to have by intuition a wonderfully correct 
notion of it. The rest of the profession and the public gave 
him unqualified praise, and a general expectation was enter- 
tained that he would soon be appointed Lord Chancellor or 
Lord Keeper, for he was not only much handier in dealing with 
the cases which came before the commissioners than either of 
his colleagues, but he was considered fitter for the office than 
Henley the Attorney General, or any one else who could pre- 
tend to it. Frightened out of his wits by the apprehension 
of the much-coveted bauble being offered to him, he thus 
wrote to his brother, Sir Robert Wilmot : — 

“ The acting junior of the commission is a spectre I started at, 
but the sustaining the office alone I must and will refuse at all 
events. I will not give up the peace of my mind to any earthly 
consideration whatever. Bread and water are nectar and ambrosia 
when contrasted with the supremacy of a court of justice.” 

For this turn there was not any serious ground for the 
alarm, for the promotion was only slightly proposed to him, 
and his refusal of it was easily acquiesced in. Political con- 
venience prevailed over a strict consideration of the good of 
the suitors, and, —Chief Justice Willes having ruined himself 
by standing out for a peerage, —to please the Leicester 
House party, the great seal was delivered to Sir Robert 
Henley, afterwards created Earl of N orthington. 

The ex-commissioner gladly returned to the King’s Bench, 
resolved never again, either jointly with others or singly, to 
touch the “ pestiferous piece of metal.” * 

For ten years he went on as a Puisne Judge of the King’s 
Bench, only longing for some situation in which he might be 


a Description of the great seal by Lord Keeper Guilford, 


LIFE OF CHIEF JUSTICE WILMOT. 


less subject to public gaze. On one occasion, while presiding 
at the Worcester Assizes, he had very nearly been released 
from all dread of further promotion in this world. The fol- 
lowing letter to his wife gives the particulars of his danger 
and escape : — 

“JT send this by express, on purpose to prevent your being 
frightened, in consequence of a most terrible accident at this place. 
Between two and three, as we were trying causes, a stack of 
chimneys blew upon the top of that part of the hall where I was 
sitting, and beat the roof down upon us; but, as I sat up close 
to the wall, I have escaped without the least hurt. When I saw 
it begin to yield and open, I despaired of my own life and the 
lives of all within the compass of the roof. Mr. John Lawes is 
killed, and the attorney in the cause which was trying is killed, 
and I am afraid some others: there were many ,wounded and 
bruised. It was the most frightful scene I ever beheld. I was 
just beginning to sum up the evidence, in the cause which was 
trying, to the jury, and intending. to go immediately after I had 
finished. Most of the counsel were gone, and they who remained 
in court are very little hurt, though they seemed to be in the place 
of greatest danger. If I am thus miraculously preserved for any 
good purpose, I rejoice at the event, and both you and the little 
ones will have reason to join with me in returning God thanks for 
this signal deliverance: but if I have escaped to lose either my 
honour or my virtue, I shall think, and you ought all to concur 
with me in thinking, that the escape is my greatest misfortune. 

“I desire you will communicate this to my friends, lest the 
news of such a tragedy, which fame always magnifies, should affect 
them with fears for me. 

“ Two of the jurymen who were trying the cause are killed, 
and they are carrying dead and wounded bodies out of the ruins 
still.” 

In another letter he says, “It was an image of the last day, 
when there shall be no distinction of persons, for my robes did not 
make way for me. I believe an earthquake arose in the minds of 
most people, and there was an apprehension of the fall of the 
whole hall.” 

His safety is supposed to have been entirely owing to his 
presence of mind, which induced him to remain composedly 
in his place till the confusion was over —a circumstance 
which, with his usual modesty, he suppresses. 


287 


CHAP, 
X XIX, 





A.D. 1757 
—1767. 
His escape 
at the Wor- 
cester 
Assizes, 


288 


CHAP. 
XXIX. 





Offer made 
to him to 
become 
Chief Jus- 
tice of the 
Common 
Pleas. 

A.D. 1766. 


Aug. 2. 
Letter 
from his 
brother 
to per- 
suade him 
to accept. 


REIGN OF GEORGE II. 


He twice attempted, ineffectually, to exchange his present 
office for that of Chief Justice of Chester, which was of less 
emolument, but would have withdrawn him entirely from 
London; so careless was he of present applause, or of the fame 
to be acquired as a great magistrate. 

Afterwards, to the surprise of all who knew him, he did 
accept a distinguished “supremacy ” in Westminster Hall; 
but he truly said that “this was under duress.” On the 
formation of the first Rockingham administration, when Lord 
Camden became Chancellor, he resolved to have Sir Eardly 
Wilmot to succeed him as Chief Justice of the Common 
Pleas. A rumour of this promotion haying reached the 
person so selected as the worthiest, he wrote to his brother, 
Sir Robert — “ Is it not possible for you to divert a measure 
which will be so injurious to my peace if accepted, and so 
much censured if refused?” But he received no comfort 
from the following answer: — 

“ The curtain is now drawn up; the actors are coming on the 
stage. JI understand you have a part which, though not your own 
choice, has been assigned to you in so distinguished, so honourable 
a manner that you certainly ought, and gratefully, to accept it. 
Tis a duty which you owe to the King, to your friends, to your 
family, to yourself; and the duty required is neither hard nor 
unprofitable. Lord Camden claims the sole merit of your ad- 
vancement; Lord Shelburne’s friendship for you may have had 
its weight; Lord Northington has likewise, probably, promoted 
the measure. Their motive is, your eminent abilities in your pro- 
fession, your extensive knowledge, your acute and deep penetration, 
your sound judgment, your principles in favour of liberty, your 
unspotted character, and your being in every respect the most fit 
and proper person for that station. Iam clearly of opinion that 
your remove to the Common Pleas will be a fortunate and happy 
event. You will, at all events, be a permanent pillar, though the 
new ministry, as it probably will, topple down. Every mortal 
says how honourable it is for’ you to have no competitor. The 
whole town seems interested and pleased with the event, and the 
hopes of mankind would be disappointed if you rejected the public 
voice. You shall have free scope to write, or talk, or scold as 
much as you please tome. Sit but serene in your Chief Seat, and 
out of it you shall rage like Boreas.” 


LIFE OF CHIEF JUSTICE WILMOT. 


But when Lord Camden’s letter reached Sir Eardly, 
announcing that the King had graciously appointed him 
Chief Justice of the Common Pleas, his horror of promotion 
returned in full force. He was then on the Western Circuit ; 
and he showed to Mr. Justice Yates, his brother judge, a 
letter he had written to refuse, with all respect and gratitude, 
the honour intended for him. This sensible and warm- 
hearted man, having in vain used many arguments to combat 
his resolution, at last made a little impression by urging that, 
as the Common Pleas had no criminal jurisdiction, and no 
state trials, a Chief there might be quieter and less observed 
than a Puisne in the King’s Bench, — where Wilkes’s out- 
lawry was agitated, and “libel” was the staple commodity. 
He then, with his own hand, wrote a letter of acceptance, 
addressed to the Chancellor in Wilmot’s name, and by gentle 
force induced him to sign it. 

At the end of the circuit the new Chief Justice was sworn 
in as Chief Justice of the Common Pleas, and received the 
following congratulatory epistle from the friend whose duress 
had compelled him to suffer this elevation : — 

“ Clifton, Aug. 30. 1766. 

* My dear Lord Chief Justice, — I have now the satisfaction of 
addressing my friend by the title I so ardently wished him; and, 
blessed as you are with the liveliest feelings of a friendly heart 
(one of the greatest blessings that man can enjoy), don’t you envy 
me the joy I feel from this event’ I should, indeed, have been 
heartily chagrined if you had missed it; and, had the fault been 
your own, should have thought you exceedingly blamable. My 
casuistry would then have been staggered indeed, and would have 
found it a difficult point to excuse you. But now it is quite at 
peace and entirely satistied. You do me great honour in rating it 
so high, and I am sure you speak from the heart. It is the pri- 
vilege of friendship to commend, without the least suspicion of 
compliment; and I shall ever receive any approbation of yours 
with superior satisfaction. But no man breathing can have a 
surer guide or a higher sanction for his conduct than my friend’s 
own excellent heart. Of this the very scruple you raised would 
alone have convinced me if I had no other proofs. I have not the 
least doubt that you will find your new seat as easy as you can 
wish, and all your coadjutors perfectly satisfied. There is but 

VOL. II. U 


289 


CHAP. 
X XIX. 


A.D. 1766. 


How he 
became 
a Chief 
Justice by 


duress. 


Letter of 
congratu- 
lation from 
Mr. Jus- * 
tice Yates. - 


290 


CHAP. 
XXIX. 


A.D. 1766, 


From 
Judge 
Blackstone. 


REIGN OF GEORGE III. 


one of them that could entertain any thoughts of the same place 
for himself; and as he knows that in the present arrangement he 
had not the least chance of it, I dare say he will be pleased to see 
it so filled. And as to the rest of the profession, I can affirm with 
confidence (for you know I have but lately left the bar, where I 
had a general acquaintance with the sentiments of the Hall), that 
no man’s promotion would have given so universal satisfaction as 
yours. I repeat this to you because it certainly must give you 
pleasure. Success is never more pleasing than when it is gained 
with honour and attended with a general good will. It will rejoice 
me highly to shake your hand before I go northwards; and if I 
knew what day you would be at Bath, I would give you the meet- 
ing there. I long to hear a particular detail of everything that 
has passed. 
*“ Your most affectionate friend, 
“J. YATES.” 

Nauseated by the formal and fulsome letters addressed to 
him on this occasion, he was much pleased with the following 
from the celebrated ‘“‘ Commentator on the Laws of England,” 
with whom he had always been on terms of familiarity and 
friendship, and who had himself fair pretensions to the pro- 
motion : — 

“ My Lord, — Among the many congratulations you receive 
upon a promotion which everybody is pleased with, even in these 
times of division, there are none more sincere than those which 
come from your Lordship’s acquaintance, who have an opportunity 
of contemplating your private as well as public character. As 
your Lordship has been pleased to honour me with that advantage 
in a degree that has laid infinite obligations upon me, you will be- _ 
lieve that it is with real pleasure I felicitate both your Lordship 
and Westminster Hall on an event that does honour to both. 

“Tam, &c. 
“ W. BLACKSTONE.” 

The prospect held out to him of a quiet life in the Common 
Pleas was realised, and he continued to repose upon the 
“cushion” there without any thing to disturb him till the 
terrible ministerial crisis in the beginning of the year 1770. 
Lord Chatham having then unexpectedly reappeared upon 
the stage, Lord Camden’s dismissal was only deferred till 
some lawyer of decent character could be prevailed upon to 
consent to be his successor. 


LIFE OF CHIEF JUSTICE WILMOT. 


The first attempt was made upon Wilmot; and, as he 
happened to be in attendance in the House of Lords, the 
Duke of Grafton, little dreading a rebuff, came up ,to him, 
and, pointing to the great seal, said, “There itis, Sir Eardly ; 
you shall have it in your possession to-morrow.” Sir Eardly 
shook his head and begged to be excused. The consequence 
was, the pressure upon Charles Yorke, to which that un- 
happy man fatally yielded. Immediately after his sudden 
death, the offer was'repeated to Wilmot, with any peerage, 
pension, and reversion he might be pleased to name; but he 
was immovable, and the great seal was given in commission 
to Sir Sidney Stafford Smythe, Sir Richard Aston, and the 
Honourable Henry Bathurst, afterwards Lord Apsley. 

In the beginning of the following year, Lord North having 
become Prime Minister, before committing the clavis regni to 
the incompetent hands of Bathurst, made another vigorous 
effort upon Wilmot, but found him still preferring quiet to 
the first place in his profession, to great wealth, to hereditary 
honours for his family, and to the opportunity of making an 
historical name for himself. Bathurst was, in consequence, 
appointed ; and the sarcasm was elicited, that ‘‘ what the three 
Lords Commissioners had been unable to do, was now to be 
done by the most incompetent of the three.” 

To avoid all further solicitation, Wilmot resolved to resign 
his office, making infirm health the ground for his retirement, 
He had fretted himself into a temporary indisposition, during 
which he had got other judges to sit for him. Thus he ad- 
dressed Lord Hardwicke : — 

“ My health necessitates my retreat from public business ; and 
all that I ask of his Majesty is, that he will be graciously pleased 
to accept my resignation, for I have observed that it may be com- 
municated to the King in the most humble manner from me that I 
do not wish or mean to be an incumbrance to his Majesty by any 
provision out of his civil list. I would much rather resign with- 
out any remuneration at all. I hate and detest pensions, and 
living upon the public like an alms-man.” 

By the special intervention of the King himself, a retired 
allowance was settled upon him; and in January, 1776, his 
resignation was accepted. 

v2 


291 


CHAR, 
X XIX. 


He again 
refuses the 
great seal, 


Jan. 21. 
1770. 


He resigns 
Justiceship. 
Dec. 29. 


292 


CHAP. 
XXIX. 


——e 


A.D. 1770 
—1] 790. 
Wilmot in 
retirement. 





His death, 


REIGN OF GEORGE III. 


He survived above twenty years. That he might do some- 
thing for the public money which he received, he long 
continued to hear appeals in the Privy Council; but the 
infirmities of age pressing upon him, he afterwards entirely 
devoted himself to the duties and enjoyments of private life. 
His principal occupation in retirement was superintending 
the education of his younger children. Thus he. wrote toa 
boy of fifteen: — 

“ Second my endeavours to cultivate your mind and to impreg- 
nate it with the principles of honour and truth which constitute a 
gentleman. These I received in the utmost purity from my own 
father, and will transmit to you and to your brothers unsullied, 
However. fortune may exalt or depress you, the consciousness of 
having always acted upon these principles will give you the only 
perfect happiness that is to be found in this world. But, above all 
things, remember your duty to God, for without his blessing my 
love and affection for you will be as ineffectual to promote your 
happiness here as hereafter; and whether my heart be full of joy 
or of grief, it will always beat uniformly with unremitting wishes 
that all my children may be more distinguished for their goodness 
than their greatness.” 

He lived to see the sixth age shift 


** Into the lean and slipper’d pantaloon,” 


of which he gives the following description, almost as melan- 
choly as that of our immortal dramatist : — “I thought you 
would be glad to see, under my own hand, that J east both in 
body and mind; but I can neither go nor stand, nor eat, nor 
sleep.” His family and his friends had even to witness the 
sad spectacle of his passing through the 


.- “ Last scene of all, 
That ends this strange eventful history, 
. second childishness and mere oblivion.” 


From this he was released on the 5th of February, 1792, 
when.he had reached his eighty-second year. His remains 
were interred in the parish church of Berkswell in Warwick- 
shire, where a monument has been erected to his memory, 
which, according to his own directions, only gives the dates 
of his birth, of his death, and of the memorable events of his 
life. 

The impartial biographer must say, that although Sir 


LIFE OF CHIEF JUSTICE WILMOT. 


Eardly Wilmot never shone as an orator, a statesman, or an 
author, he is to be placed in a very high rank in the order of 
Judges. Beyond the common qualities of patience and purity, 
he had an extraordinary store of juridical knowledge, he saw 
with celerity the questions of law upon which the decision of 
each case depended, and he disposed of these not only with 
perfect accuracy but with wonderful copiousness of illustration. 
He was not fortunate in his reporters, Burrow and Wilson ; — 
but his son has published, from his own MSS., several of his 
judgments, which are very honourable to his memory. I can 
only give a few short specimens of his manner. 

An action upon the case was brought for maliciously 
writing and publishing a libel upon the plaintiff in the fol- 
lowing words, imputing to him that he was infected with a 
loathsome disease ; — 


“ Old Villiers, so strong of brimstone you smell, 
As if not long since you had got out of hell.” 


After a verdict for the plaintiff, a motion was made in arrest 
of judgment by Serjeant Burland, who argued that the words 
were not actionable; that the itch is a distemper to which 
every family is liable ; that to have it is no crime; nor does it 
bring any disgrace upon a man, for it may be innocently 
caught or taken by infection ;-— that the small pox and a 
putrid fever are worse disorders, yet no action would lie for 
saying that a person was ill of either of them. 

Wilmot, C.J.: “TI think this is a libel for which an action 
well lies. If any one maliciously publishes anything in writing 
concerning another which renders him ridiculous or tends to 
hinder mankind from associating with him, he is injured, and 
may have a recompence in damages. I see no difference between 
this case and saying that a man has the leprosy or the plague, for 
which it is admitted that an action lies. A writ may issue to the 
sheriff to remove him without delay ad locum solitarium ad habi- 
tandum ibidem, prout moris est, ne per communem conversationem 
suam hominibus dampnum vel periculum eveniet quovismodo. No- 
body will eat, drink, or have any intercourse with a person who 
has the itch and stinks of brimstone. Therefore I think this libel 
actionable, and that judgment must be for the plaintiff.” * 


* 2 Wilson, 463.; Villiers v. Mousley. 
io te 


293 


CHAP. 
XXIX. 


His judi- 
cial charac- 
ter. 


Actienable 
to state in 
writing 
that a per- 
son has the 
itch. 


294 


CHAP. 
XXI1X. 


Meaning, in 
a policy, of 
“ usurped 
power,” 


REIGN OF GEORGE III. 


In an action on a policy of insurance on a malthouse 
burnt down by rioters, who, trying to reduce the price of 
provisions, for some time had possession of the town in which 
the insured building stood,—a question arose whether the 
insurance-oftice was exempted from liability by an exception 
in the policy of all fires which might happen by “ any in- 
vasion, foreign enemy, or any military or usurped power 
whatsoever.” 

Wilmot, C. J.: “I am of opinion that the firing of the malt- 
house by the mob is not a fire by any usurped power within the 
meaning of the exception. Policies of insurance, like other deeds 
and instruments which evidence the agreements of men with one 
another, must be construed according to the true intent and mean- 
ing of the parties who make them. To find out this intention is 
often very difficult ; for when agreements are committed to writing, 
all extrinsic evidence of intention is shut out ; and words being 
the only marks of that intention, it happens that sometimes from 
the imperfection and poverty of language, and sometimes from the 
barbarous and inaccurate application of it, much doubt arises with 
respect to the ideas which the parties denote by the words they 
employ to express them. ‘ Usurped power’ are two equivocal 
words which perplex this question, and, under such a difficulty, 
judges have no other clue to lead them out of the maze but to 
consider the import of the accompanying words, to take into con- 
sideration the general scope and design as well as the particular 
sentence in which the words occur. Above all things the popular . 
and ordinary use of the words must be attended to. Usage is the 
master key which unlocks the meaning of words : — 


**¢ Quem penes arbitrium est et jus et norma loquendi.’” 


Having explained very copiously the nature of the fires by in- 
vasion, foreign enemies, and military operations, for which the 
insurers were not to be answerable, he thus proceeds : — “ In my 
opinion there is a prodigious difference between mobs and armies. 
The laws executed with spirit will always suppress a mob: the 
magistrates did with ease in this case. The undaunted courage of 
an individual, or the personal appearance of a man of credit and 
reputation, disperses or assuages these fevers of the people. Our 
own experience, as well as history, shows it according to that 
beautiful simile of Virgil : — 


LIFE OF CHIEF JUSTICE WILMOT. 


*«* Ac, veluti magno in populo quum sepe coorta est 
Seditio, seevitque animis ignobile vulgus ; 
Jamque faces et saxa volant; furor arma ministrat : 
Tun, pietate gravem et meritis si forte virum quem 
Conspexére, silent, arrectisque auribus adstant : 
Ille regit dictis animos, et pectora mulcet.’ 


Suppose a mob fire a house before they disperse, all hands are 
instantly employed to extinguish it; but neither the courage nor 
character of individuals can silence the thunder of cannon or 
prevent the bursting of bombs. To indemnify against the effect of 
rebellion and civil war may be too perilous an undertaking; but 
there seems no reason why an indemnity should not be promised 
against fires raised by a mob. These, though they may be the ruin 
of individuals, are not likely to occasion a loss beyond the means 
of a wealthy insurance company.” 

One Puisne was of a contrary opinion —but the two others 
agreeing with the Chief Justice, there was judgment for the 
plaintiff, and the rule here laid down has been acted upon 
ever since.* 

Sitting in the Exchequer Chamber, the question came 
before him whether a lady could maintain an action against a 
gentleman upon a deed by which he covenanted that he would 
not marry any other but her, under a penalty of 10002. 


Wilmot, C. J. : “ Upon the first view of the question the maxim 
cited at the bar, volenti non fit injuria, seems to favour such a 
covenant ; every man has a right disponere de suo jure; and as 
the law does not oblige anybody to marry, and leaves a free 
agency in that respect to every member of the community, it is not 
an agreement to omit what the law commands, but an agreement 
to omit what the law leaves to every man’s choice to omit if he 
pleases. Besides obligations which are the subject of an action, 
every member of civil society is under a variety of moral obli- 
gations which municipal laws do not enforce ; but which the law 
of nature, the law of God, calls upon him to perform. Gratitude, 
charity, and all parental and filial duties beyond mere main- 
tenance ; friendship, beneficence in all its various branches, and 
many more which might be named, are duties of perpetual, though 
imperfect, obligation; and I cannot name a greater than matri- 
mony, being one of the first commands given by God to man- 
kind after the creation, repeated again after the deluge, and ever 
since echoed by the voice of nature to all mankind. For the 
precept of multiplication has been always expounded by the civi- 


* Drinkwater y. Royal Exchange, Wilm. Op. 282. 
UL 


CHAP. 
XXIX. 





Qu. whe- 
ther an ac- 
tion lies by 
a lady 
against a 
gentleman 
on a cove- 
nant to 
marry 

no one but 
her. 


296 


CHAP, 
XXIiX., 





Power of 
the Solici- 
tor General 
when the 
office of 
Attorney 
General is 
vacant, 


REIGN OF GEORGE III. 


lised part of the world to mean multiplication by the medium of 
matrimony ; and there cannot be a duty of greater importance to 
society, because it not only strengthens, preserves, and perpetuates 
it, but the peace, order, and decency of society depend upon pro- 
tecting and encouraging it. The point therefore to be considered 
is, whether a covenant to omit such a duty ought to be enforced én 
foro civili? The writers upon the law of nature consider con- 
tracts to omit such duties as void; nay, they consider an oath to 
perform them as not obligatory.* Will the law of this country, 
the perfection of human reason, enforce such a contract? Isa 
covenant to omit moral duties, which, for the exercise of our 
virtues, are left to our free choice, the proper subject-matter of an 
action? To entertain an action for the breach of such contracts, 
would be setting the laws of God and man at variance with one 
another. The celibacy of ecclesiastics, whether secular or religious, 
was a weed of the common law, erroneously tolerated by the com- 
mon law and totally extirpated at the Reformation. The case of 
the fellows of colleges depends upon the will of the founder : there 
is a succession in colleges: it is only a temporary restraint on a 
few in seminaries of learning, which are not proper places for the 
reception of wives and children.” After examining a vast number, 
he concludes by announcing the unanimous opinion of the Court 
that the deed was void. 

As the organ of the Common Law Judges, Wilmot de- 
clared their opinion in the House of Lords in the famous 
case of John Wilkes, on the question whether, the office of 
Attorney General being vacant, the Solicitor General may 
file an ex officio information for a libel ? 


“ By our constitution,” said he, “the King is intrusted 
with the prosecution of all crimes which disturb the peace and 
order of society. He sustains the person of the whole commu- 
nity for the resenting and punishing of all offences which affect 
the community ; and for that reason all proceedings ad vindictam 
et penam are called in the law ‘the pleas or suits of the Crown.’ 
In capital crimes these suits of the Crown must be founded upon 
the accusation of a grand jury; but in all inferior crimes an in- 
formation by the King is equivalent to the accusation of a grand 

* Grotius, lib. ii, cap. 13. s. 67. 

+ Low v. Peers, Wilm. Op. 364. Tamen quere, for the covenant was sub- 
stantially a mere promise to marry the plaintiff or pay her a sum of money, 
and therefore not in restraint of marriage ; and the instrument being under seal, 


there was no necessity for a reciprocal obligation, or any other consideration, 
being expressed on the face of it. 


LIFE OF CHIEF JUSTICE WILMOT. 


jury. He employs an officer to file the information in his name; 
but the accusation is the act of the King, the great constitutional 
guardian of the public peace. The arguing that the Attorney 
General only, and no other officer, was intrusted by the consti- 
tution to sue for the King either civilly or criminally, is a funda- 
mental mistake. The Attorney General is intrusted by the King 
and not by the constitution ; it is the King who is intrusted by 
the constitution.” He then gives an antiquarian history of the 
office of Attorney General, showing how by the will of the so- 
vereign it had gradually acquired its present dignity, and then 
proves that the Solicitor General has co-ordinate authority : — 
“The Solicitor General is the Secundarius Attornatus ; and as 
the Courts take notice judicially of the Attorney General when 
there is one, they take notice of the Solicitor General as standing 
in his place when there is none. He is a known and sworn officer 
of the Crown as much as the Attorney; and, in the vacancy of 
that office, does every act and executes every branch of it. When 
the Attorney dies or is removed, must the great criminal juris- 
diction of this kingdom, in his department, be suspended till 
another is appointed ? Where is it to be found that in this interval 
the noblest branch of the King’s regal office becomes inactive, and 
the subject’s right to protection is in abeyance?” He then cites 
many precedents in support of this opinion, — upon which the 
judgment against Wilkes was affirmed.* 


I shall, further, only give a short extract from a judgment 
which he had written, but which was not delivered, in a case 
in which there was'a summary application to the Court of 
King’s Bench for an attachment against a bookseller who 
had published a pamphlet reflecting severely on Lord Mans- 
field and the other Judges of the court for their conduct in 
libel prosecutions instituted by the Crown. The doctrine he 
lays down, that, by the law of the land, courts may punish 
in a summary manner for contempt, instead of waiting for an 
indictment to be tried by a jury, is highly important, as it 
applies equally to the privilege of the two Houses of Parlia- 
ment to follow a similar course : — 

“The power which the, courts in Westminster Hall have of 
vindicating their own authority is coeval with their first foundation 
and institution ; it is a necessary incident to every court of justice, 
whether of record or not, to fine and imprison for a contempt acted 


* Wilkes y. The King, Wilm. Op. 322. 


297 


CHAP. 
XXIX. 


Power of 
the supe- 
rior courts 
to punish 
contempts, 


298 


CHAP, 
XXIX. 


Satire on 
Chief Jus- 
tice Wilmot 
by Horace 
Walpole. 


Character 
of Chief 
Justice 
Wilmot 
by his son. 


REIGN OF GEORGE III. 


in the face of the court; and the issuing of attachments by the 
supreme courts of justice in Westminster Hall for contempts out 
of court stands on the same immemorial usage which supports the 
whole fabric of the common law; it is as much the lex terre, and 
within the exception of Magna Charta, as the issuing of any other 
legal process whatsoever. I have examined very carefully to see 
if I could find out any vestiges of its introduction, but can find 
none. It is as ancient as any other part of the common law; there 
is no priority or posteriority to be found about it; it cannot, 
therefore, be said to invade the common law; it acts in alliance 
and friendly conjunction with every other provision which the 
wisdom of our ancestors has established for the general good of 
society. ‘Truth compels me to say that the mode of proceeding by 
attachment stands upon the very same foundation as trial by jury; 
it is a constitutional remedy in particular cases, and the judges in 
those cases are as much bound to give an activity to this part of 
the law as to any other.” * 

Sir Eardly Wilmot seems to have been venerated in his 
own time. He is spoken of with harshness only by Horace 
Walpole, who, prejudiced against him (as is supposed) by 
party malignity, after observing that “he was much attached 
to Legge,” adds, “ He loved hunting and wine, and not his 
profession.” But, as Wilmot was certainly dull, though of a 
solid understanding, the noble and fashionable memoir-writer 
could never have been in his company, and could have known 
very little about him, for he describes him as “a man of 
great vivacity of parts.” He rarely indulged in wine, and 
* case-hunting” was the only sport in which he took delight.t 

The following character of him is drawn by his son, which, 
though coloured by pious partiality, presents a striking 
likeness : — 

‘“‘ His person was of the middle size; his countenance of a com- 
manding and dignified aspect; his eye particularly lively and 
animated, tempered with great sweetness and benignity. His 
knowledge was extensive and profound, and, perhaps, nothing but 


* Rex vy. Almond, Wilm. Op. 243. In consequence of the resignation of Sir 
Fletcher Norton, who, as Attorney General§ had made the motion, it was 
dropped, after cause shown, while the Court was considering of its judgment ; 
and although there can be no doubt as to the power to proceed by attachment 
in such a case,—if a prosecution for a libel on judges be necessary, the preferable 
course is to proceed by information or indictment, so as to avoid placing them in 
the invidious situation of deciding where they may be supposed to be parties. 

+ Mem, Geo. II., ii. 107. 


LIFE OF CHIEF JUSTICE WILMOT. 


his natural modesty prevented him from equalling the greatest 
of his predecessors. It was this invincible modesty which con- 
tinually acted as a fetter upon his abilities and learning, and pre- 
vented their full exertion in the service of the public. Whenever 
any occasion arose that made it necessary for him to come forward 
(as was sometimes the case in the House of Lords, in the Court of 
Chancery, and in the Common Pleas), it was always with reluctance; 
to perform a duty, not to court applause, which had no charms for 
his pure and enlightened mind. But although he was never fond 
of the practice of the law as a profession, he often declared his 
partiality for the study of it as a science: as an instance of this, 
after he had resigned his office he always bought and read the 
latest Reports, and sometimes borrowed MS. notes from young 
barristers. He was not only accomplished in the laws of his own 
country, but was also well versed in the civil law, which he studied 
when at Trinity Hall, Cambridge, and frequently affirmed that he 
had derived great advantage from it in the course of his profession. 
He considered an acquaintance with the principles of the civil law 
as the best introduction to the knowledge of law in general, as 
well as a leading feature in the laws of most nations of Europe. 
His knowledge, however, was by no means confined to his pro- 
fession. He was a general scholar, but particularly conversant 
with those branches which had a near connection with his legal 
pursuits, such as history and antiquities. He was one of the 
original fellows of the Society of Antiquaries, when first incor- 
porated in 1750, and frequently attended their meetings, both 
before and after his retirement: most of his leisure hours were 
spent in the above researches. But of all the parts of Sir Eardly’s 
character, none was more conspicuous than the manner in which 
he conducted himself on the bench in that most delicate and im- 
portant office of hearing causes, either of a criminal or civil nature. 
He was not only practically skilled in his profession, but his pene- 
tration was quick and not to be eluded; his attention constant and 
unabated ; his elocution clear and harmonious ; but, above all, his 
temper, moderation, patience, and impartiality were so distin- 
guished, that the parties, solicitors, counsel, and audience went 
away informed and satisfied, if not contented, —‘ etiam contra quos 
statuit, equos placatosque dimisit.’ This was the case in questions 
of private property ; but when any points of a public nature arose, 
there his superior abilities and public virtue were eminently cha- 
racterised: equally free from courting ministerial favours or popu- 
lar applause, he held the scale perfectly even between the Crown 


299 


CHAP. 
XXIX, 


300 


CHAP. 
XXIX. 





Censure on 
his want of 
ambition. 


REIGN OF GEORGE III. 


and the people, and thus became equally a favourite with both. 
This was conspicuous on many occasions, but particularly in the 
important cause, related before, between Mr. Wilkes and Lord Hali- 
fax, in 1769. In private life he likewise excelled in all those qua- 
lities that render a man respected and beloved. May the remem- 
brance and contemplation of his virtues inspire his descendants 
with a desire to imitate them! This he would have thought the 
most grateful reward, this the noblest monument! Such unaffected 
piety, such unblemished integrity, such cheerfulness of manners 
and sprightliness of wit, such disinterestedness of conduct and 
perfect freedom from party spirit, could not and did not fail of 
making him beloved, as well as admired, by all who knew him. 
Genuine and uniform humility was one of his most characteristic 
virtues. With superior talents from nature, improved by unre- 
mitting industry, and extensive learning, both in and out of his 
profession, he possessed such native humbleness of mind and sim- 
plicity of manners that no rank nor station ever made him think 
highly of himself or meanly of others. In short, when we con- 
template his various excellencies, we find ourselves at a loss 
whether most to admire his deep and extensive learning and 
penetration as a lawyer; his industry, probity, firmness, wisdom, 
and patience as a judge; his taste and elegant accomplishments as 
a scholar; his urbanity and refined sentiments as a gentleman ; 
or his piety and humility as a Christian.” 

We must place him far above those who have been tempted, 
by inordinate ambition, to mean or wicked actions; yet we 
cannot consider his public character as by any means ap- 
proaching to perfection, for he was much more solicitous for 
his own ease than for the public good. By becoming a 
representative of the people, he might have materially assisted 
the House of Commons in its legislative deliberations. By 
accepting the great seal, he would have rescued the country 
from the incompetence of Bathurst, who, hardly qualified to 
be a chairman of Quarter Sessions, presided seven years on 
the woolsack. Filling the marble chair, what benefits might 
he not have conferred upon the community by his decisions, 
and by the amendment of our laws! He was deterred, not 
by any misgivings as to his own qualifications, or by any 
dislike to the political principles of those with whom he was 
to be associated in the Cabinet, but by morbid hatred of 
conspicuous position, and by selfish love of tranquillity. He 


LIFE OF CHIEF JUSTICE WILMOT. 


did not shun political strife that he might make discoveries 
in science or contribute to the literary fame of his country. 
The tendency of the tastes by which he was animated is to 
make life not only inglorious, but useless.* 

I now come to a man who, animated by a noble ambition 
for power and fame, willingly acted a conspicuous part before 
the public for above half a century ; who was a great bene- 
factor, as well as ornament, to his own times; and whose 
services to a distant posterity will be rewarded by his name 
being held in honoured remembrance. 


* The facts of this little memoir are almost all taken from a Life of Sir John 
Eardly Wilmot, published by his son in the year 1811. A few are added 
from the traditions of Westminster Hall. 


301 


CHAP. 
X XIX. 


CHAP. 
XXX. 


Qu. how 
far Lord 
Mansfield’s 
career a fit 
subject for 
biography ? 


LIFE OF LORD MANSFIELD. 


CHAPTER XXX. 


LIFE OF LORD MANSFIELD FROM HIS BIRTH TILL HE WAS CALLED 
TO THE BAR. 


AN indifferent author, who wished to write the Life of Lord 
Mansfield, having applied to him to be furnished with materials, 
“so that the brilliancy of such a splendid luminary of the law 
might never fade,” received the following answer :—‘* My 
success in life is not very remarkable: my father was a man 
of rank and fashion; early in life I was introduced into the 
best company, and my circumstances enabled me to support 
the character of a man of fortune. ‘To these advantages I 
chiefly owe my success ; and therefore my life cannot be very 
interesting; but, if you wish to employ your abilities in 
writing the life of a truly great and wonderful man in our 
profession, take the life of Lord Hardwicke for your subject ; 
he was indeed a wonderful character; he became Chief 
Justice of England, and Chancellor, from his own abilities 
and virtues, for he was the son of a peasant.” 

Unless this may be excused as a mode of getting rid of an 
impertinent application from a coxcomb, it must be considered 
an ebullition of aristocratic insolence. The “ peasant” was 
an eminent attorney in England; and, by birth, As son had 
an infinitely better chance of succeeding at the English bar, 
and reaching the highest dignities in Westminster Hall, than 
the son of a poor Scotch peer, of descent however illustrious. 
When the babe, afterwards Earl of Mansfield and Chief 
Justice of England, first saw the light at Scone, the chances 
were many milliards to one that he would never fill that 
office; and the probability was, that, if he was not cut off by 
some of the diseases of childhood, he would obscurely waste 
his days, like a true younger brother—with a contempt of 
trade and of books,—angling for salmon in the river Tay, and 


LIFE OF LORD MANSFIELD. 


coursing the deer over the braes of Athol; or that he would 
languish as a subaltern in the army, without hope of promo- 
tion, in the service of King George ; or (which was still more 
probable) that he would wander over Europe in exile and in 
indigence, as an adherent of King James, enjoying no prospect 
of celebrity except that which might accrue to him from being 
beheaded on Tower Hill. 

His circumstances did not enable him “to support the cha- 
racter of a man of fortune,” and he did not owe his success 
to the advantages which he then enumerated. His life, 
therefore, is very interesting,—and it must be curious to trace 
the steps by which, after riding on a wretched pony from 
Perth to London, “he drank champagne with the wits;” 
he became the most distinguished advocate in England; 
he prosecuted Scotch peers, his cousins, for treason against 
King George ; he was the rival of the elder Pitt, the greatest 
parliamentary orator England has ever produced; he was 
raised to be the highest Criminal Judge of the realm; he 
repeatedly refused the still more splendid office of Lord 
Chancellor; he, without political office, directed the measures 
of successive Cabinets; and (what was far truer glory) he 
framed the commercial code of his country. 

There are other considerations which particularly excite 
me as I enter upon the life of Lorp MAnsrirLtp. He was 
the first Scotchman who ever gained distinction in the pro- 
fession of the law in England; and, though his education 
was English, the characteristics of his race may have con- 
tributed to his success.* Being, like him, an English 
lawyer, I am proud of him when I reflect that he affords a 
rare example among us of a genuine taste for elegant lite- 
rature, combined with a profound knowledge of jurisprudence. 
But, most of all, I look upon him with interest as a con- 


* Different trades and professions seem to suit the inhabitants of different 
countries. In London, all the milkmen are Welsh; all the sugar-bakers are 
German, and a great many of the tailors. The vast majority of the bakers 
are Scotch, but there is not a Scotch butcher to befound. While no tolerable 
theatrical performer ever came from Scotland, we have had considerable success 
in medicine and in law. To the literature of the country I trust it will be 
allowed that we have brought at least our fair contribution, when it is con- 
sidered that there are less than 3,000,000 of inhabitants in Scotland, while 
there are 8,000,000 in Ireland, and 14,000,000 in England. 


303 


CHAP. 
XXX. 


Sources of 
interest to 
the author 
of this me- 
moir in 
composing 
it. 


304 


CHAP: 
XXX. 


Lord 
Manstield’s 
illustrious 
descent. 


Founder of 
the Stor- 
mont Mur- 
rays. 


LIFE OF LORD MANSFIELD. 


necting link between the reign of Queen Anne and our own 
times. Having been the familiar friend of Pope, he was 
the familiar friend of my familiar friends.* Occupying the 
stage of political life almost for a century, he brings together 
systems as well as men that seem many generations asunder. 
After the expulsion of the Stuarts he saw the present dynasty 
placed upon the throne of Britain; and he lived to hear the 
news of the murder of Louis X VI., and to foresee and fore- 
tell all the evils which Europe has since suffered, and is 
suffering, from a violation of the principles of order and of 
true liberty. 

In following the career of such a man, while we meet 
with striking vicissitudes affecting him individually, we must 
catch interesting glimpses of history and of manners. But I 
have too much raised expectation, and I must now expose 
myself to the peril of disappointing it. 

Lord Mansfield was entitled to the consideration which 
fairly belongs to distinguished ancestry. Setting aside the 
fabulous origin of his family from a great Moravian chief, 
supposed in a very remote age to have conquered a province 
of Scotland now called Morayshire, we know, from authentic 
records, that Friskinus de Moravia was a powerful noble in 
the north of Scotland in the beginning of the twelfth 
century; and that Gulelmus de Moravia, his lineal de- 
scendant, by a charter of King Alexander III., dated 1284, 
was confirmed in the possession of the estates of Tullebar- 
dine, in the county of Perth, which he had obtained by 
marriage with the heiress of Malise, Seneschal of Strathearn. 
From him sprang a long line of Barons of Tullebardine, 
represented by the present Duke of Athol, chieftain of the 
Murrays. 

A younger son of Sir William Murray, the eighth Baron 
of Tullebardine, was married to the Lady Janet Graham, 
daughter of the Earl of Montrose, and had several sons, who, 
though highly connected, were very poorly provided for, 

* T may particularly instance the late Mr. Justice Allan Park and Lord 
Mansfield’s kinsman the present Lord Murray, a judge of the Court of Session. 
My greatest boast in this line is, that I have conversed with Sir Isaac Herd, the 


celebrated Henan, and he had conversed with a person who was present at the 
execution of Charles I. 


~ 


LIFE OF LORD MANSFIELD. 


and seemed to have no resource for a subsistence but to join 
in an occasional raid on the lowlands, or to become tacksmen 
to the chief of the clan of a patch of land in a remote high- 
land glen. This was probably the fate of all of them except 
one, for no mention is afterwards made of the others; and 
their descendants may be shoemakers at Perth, or may be 
sweeping the crossings of the streets in London, unconscious 
of any claim to noble ancestry. But David, the second son, 
became the founder of the Stormont branch of the family, 
and is the ancestor of the Earls of Mansfield. 

Being remarkably well formed and athletic, he was enlisted, 
when very young, as a private in a small body of halberdiers, 
all of gentle blood, constituting the body-guard of James VI., 
who nominally had filled the Scottish throne from his in- 
fancy, while his mother, Mary, the rightful sovereign, was a 
captive in a foreign land, and successive factions governed in 
his name. ‘The identical passion for handsome favourites, 
which afterwards raised the Earl of Somerset and the Duke 
of Buckingham to such unfortunate distinction in England, 
showed itself in the Scottish monarch in early youth. Caught 
by the good looks, pleasing manners, and skill in all sorts of 
games which he discovered in David Murray, he made him 
his companion, knighted him, and promoted him to be Master 
of the Horse, Comptroller of the Household, and Captain of 
the Body-guard. 

It so happened that the favourite was in attendance on his 
royal patron in the castle of the Earl of Gowrie, at Perth, 
when that conspirator (for such, after long controversy, I 
fear he is now proved to have been) attempted to make the 
King a prisoner, with the view of getting all the power of 
the state into his own hands.* Sir David Murray displayed 
great presence of mind upon the occasion, and gave im- 
portant assistance in rescuing the King and securing the 
traitors. He soon afterwards gallantly quelled an insurrec- 


* I wish I could have defended him from this charge, as he was the heir and 
representative of the Lords Hallyburton, from whom I am descended; but, in 
spite of the many volumes which have been written on the Gowrie Conspiracy 
to prove that James got up a sham plot to wreak his vengeance on a family he 
had devoted to destruction, I think there ean no longer be a doubt that the plot 
was real, and that he had very nearly been the victim of it. 


VOL. II. x 


305 


CHAP. 
XXX, 


David, 1st 
Viscount 
Stormont. 


a.v. 1600, 


306 


CHAP. 
XXX. 


A.D, 1600. 


5th Vis- 
count 
Stormont. 


« 


LIFE OF LORD MANSFIELD. 


tion of the inhabitants of Perth and the surrounding country, 
who idolised the young Earl of Gowrie and had risen to 
avenge his death. For these services a considerable portion 
of the forfeited estates of that nobleman was bestowed upon 
him. The site of the ancient Abbey of Scone,—where the 
kings of Scotland had been crowned from the remotest 
antiquity, and where stood, till it was removed to West- 
minster by Edward I., the famous stone on which they were 
anointed, — had been granted to the Earl, after the sacred 
edifice itself had been burnt to the ground by the reformers ; 
—and here he was erecting a new castle, or PALACE (as it was 
called, from royal recollections), at the time of his attainder. 
This became part of the possessions of the new favourite, 
who completed the structure, and was designated Lord 
Scone, the property having been erected into a temporal 
barony. He continued in high favour at court till James’s 
accession to the throne of England; and, although he was 
then cast off for other minions, he was afterwards, by letters 
patent bearing date 16th of August, 1621, created Viscount 
Stormont.* This title, long borne by his descendants in the 
lineal male line, was absorbed by the earldom, which a cadet 
won by very different arts and achievements. 

For several generations following, the family were dis- 
tinguished by extravagance rather than by talent or enter- 
prise, and a large portion of the possessions which they had 
received from the bounty of King James VI. had been 
alienated. In the time of the fifth Viscount little remained 
to them beyond the Castle of Scone, which, in a dilapi- 
dated condition, frowned over the Tay in the midst of 
scenery which for the combination of richness and picturesque 
beauty is unsurpassed. He had married the only daughter 
of David Scot, of Scotstarvet, the heir male of the Scots of 
Buccleugh; but had received a very slender portion with her, 
as their vast possessions had gone with the daughter of the 
last Earl, married to the Duke of Monmouth. To add to 
the difficulties of the poverty-stricken Viscount, his wife, 

* There may still be seen in the adjoining church a fine marble monument 


over his tomb, representing him, as large as life, in a kneeling posture, and in 
complete armour. 


LIFE OF LORD MANSFIELD. 


although of small fortune, was of wonderful fecundity, and 
she brought him no fewer than fourteen children. For these 
high-born imps oatmeal porridge was the principal food which 
he could provide, except during the season for catching 
salmon, of which a fishery near his house, belonging to his 
estate, brought them a plentiful supply. 

William, the eleventh child and fourth son of this brood, 
destined to be Chief Justice of England, was born in the 
ruinous castle of Scone on the 2d day of March, 1705.* 
I do not read that his mother had any prophetic dream while 
she carried him in her bosom, or that any witch or wizard 
with second sight foretold his coming greatness. He muled 
and puked like other children, and when it was time that he 
should be taught his letters he was sent to a school at Perth, 
only a mile and a half from his father’s residence, where he 
ran about with the sons of the surrounding gentry and of the 
citizens and tradesmen of the town, all barefooted, and 
speaking a dialect which was not Caelic, for Perth was 
always within the boundary which separated the Lowlands 
of Scotland from the Highlands, but which was a patots 
hardly to be called Anglo-Saxon. f 

Holliday, — who, although he had every advantage in 
writing the Life of Lord Mansfield, being himself a lawyer 
in extensive business, having often practised before him, and 
having been honoured with his friendship, has left us the 
worst specimen of biography to be found in any language,— 
says, “ About the tender age of three years he was removed 
to, and educated in, London; and, consequently, he had not, 
when an infant, imbibed any peculiarity of dialect.” This 
statement has been followed by all the subsequent biogra- 
phers of Lord Mansfield, and has been assumed for truth by 
all who have since referred to his early career. Accord- 
ing to Boswell, “ Dr. Johnson would not allow Scotland 
to derive any credit from Lord Mansfield, as he had been 


* The date is usually given 1704, but this is according to the old style. 

+ A very circumstantial account of his infancy was given by his nurse, who 
died in 1790, in the parish of Monimail, in Fife, at the age of 105. She 
usually concluded her narrative by observing that “ Mister Willie was a very 
fine laddie.” See Sir Jobn Sinclair’s Statistical Account of Scotland, ii, 404. 


x 2 


307 


CHAP, 
XXX. 





A.D. 1705, 


Birth of 
William 
Murray, 
afterwards 
Earl of 
Mansfield. 


Refutation 
of the oft- 
told tale 
that he was 
removed to 
England in 
his infancy. 


308 


CHAP, 
XXX. 


A.D. 1710 
—1713. 


Words 
which he 
could 
never learn 
to pro- 
nounce 
like an 
English- 
man. 


Fable of 
his having 
been edu- 
cated at 
Lichfield. 


Willie 
Murray at 
Perth 
School. 


LIFE OF LORD MANSFIELD. 


reared in England; observing, ‘Much may be made of a 
Scotchman if he be caught young.” But I have ascertained 
from his near kinsmen, who speak from family papers, that 
the story of his being thus caught and tamed is pure in- 
vention. He remained at the grammar-school at Perth till he 
was in his fourteenth year,— when he went to Westmin- 
ster. Afterwards, by constant pains with his pronunciation, 
and by never returning to visit his native country, he 
did almost entirely get rid of his Scottish accent; but 
there were some shibboleth words which he could never pro- 
nounce properly to his dying day, and which showed that his 
organs of speech had contracted some rigidity, or his organs 
of hearing some dulness, before his expatriation. For ex- 
ample, he converted regiment into reg’ment; at dinner he 
asked not for bread but for brid; and in calling over the bar 
he did not say “ Mr. Solicitor,” but “ Mr. Soleester, will you 
move any thing?” 

I need hardly notice the equally unfounded story that he 
was at Lichfield School along with Lord Chancellor North- 
ington, Chief Justice Willes, Chief Justice Wilmot, Chief 
Baron Parker, Sir Thomas Clarke, Master of the Rolls, and 
a herd of puisne judges, who are supposed to have there 
played together at taw, and afterwards simultaneously and 
exclusively to have presided in Westminster Hall. Instead 
of such amusing wonders, I am obliged to state that he spent 
his boyhood among companions whom he never afterwards 
met, or much wished to meet again. However, Latin was 
infinitely better taught then in the grammar-schools of Scot- 
land than at the present day; and young Willie Murray 
could not only translate Sallust and Horace with ease, but 
had learned a great part of them by heart, — could converse 
fluently in Latin,—could write Latin prose correctly and 
idiomatically,—and even could have contributed Latin verses 
to the DeLicira PorTrarum Scororum, a collection of mo- 
dern Latin poems which had been published not long before 
in Edinburgh, and which must be allowed to be much supe- 
rior to the Musa Eronenses or the ARUNDINES Camt.* 


* T have often been at a loss to understand how Latin versifieation, which had 
flourished in Scotland so much in the 16th and 17th centuries, disappeared so 


LIFE OF LORD MANSFIELD. 


In Greek he made little progress beyond learning the 
characters and the declensions.* 

But there was another foreign language which he was 
taught grammatically, and,which he was supposed to speak 
and to write with wonderful facility and accuracy. Pure 
English was laboriously attended to at Perth School, both 
in reading and composition; its rules and its irregularities 
were fully explained, and the writing of an English essay 
was an exercise required from the boys at the peril of the 
ferula. ord Mansfield, in his old age, was often heard to 
declare that when at Westminster and at Oxford, and even 
when contending with rivals in public life, he had enjoyed 
an essential advantage from this discipline, as he discovered 
that in England, while they wasted many years on Latin and 
Greek prosody, they almost entirely neglected the scientific 
cultivation of their mother tongue ; and he found eminent 
lawyers and statesmen who, when forced to commit their 
thoughts to writing, showed that they had no notion of the 
division of English prose into sentences, and who, though 
decently well acquainted with orthography, set at utter 
defiance the rules of grammar. 

Willie Murray, according to the tradition in his family, 
while going through the school at Perth, displayed the 
sharpness of intellect, the power of application, and the re- 
eularity of conduct which distinguished him in his after- 
career. He was almost always Dux, or head of his class ; and, 
albeit that, according to the custom of the age, flagellation 
with the taws was administered even for small faults, his 
hand remained without a blister. f 


completely in the 18th. When I was aboy, although the habit of composing Latin 
prose was well kept up, I do not believe that in all Scotland there was either a 
schoolboy or a schoolmaster who, to save his life, could have written in Latin an 
alcaic ode, or twenty hexameters and pentameters alternately. The practice of 
speaking Latin still prevailed. There has since been an attempt at a revival, 
and Latin versification is practised at the High School of Edinburgh, and other 
classical seminaries, —but, if we may judge from the “ Muse Edinenses,” not as 
yet with very great success. 

* Iam sorry to say that Greek has at no time been cultivated in Scotland as 
this noble dialect deserves, although it has been much more attended to of late 
years, since professors bred at Oxford and Cambridge have been elected to the 
Greek chairs in the Scotch Universities. 

+ Instead of the birch applied to another part of the person, in English fashion, 
the Scots have adopted the punishment which made good scholars at Rome, — 

“ Et nos ergo manum ferule subduximus.” 


x S 


309 


CHAP. 
XXX. 





A.D. 1710 
—1713. 


310 


CHAP. 
XXX. 


A.D. 1713 
—1718. 


Items in 
family ac- 
counts for 
books, &c., 
for him 
while he » 
was a 
school-boy. 


LIFE OF LORD MANSFIELD. 


Till the year 1713, Lord and Lady Stormont continuing 
to reside in the palace at Scone, Willie lived at home with 
them, and he daily walked or rode on a pony to school, — 
thus combining, in the Scottish fashion, the advantages of 
public education and of domestic discipline. But, for the 
sake of economy, the family was then moved to a small house 
at Camlongan, in the county of Dumfries; and Willie and a 
younger brother, Charles, were boarded with Mr. Martine, the 
master of the grammar-school at Perth, who received for 
them a yearly payment in money and a certain allowance of 
oatmeal. The following items respecting them, which I 
have extracted from the accounts of Mr. Barclay, a writer to 
the signet, Lord Stormont’s Edinburgh agent, may amuse 
the reader : — 


£ +8. .d. 
“1715. May 25. Item.—Sent to Scone per Lady’s letter for 
Mr. William, CmsaAris Commentarius - 1 04 OO* 
1717. Aug. 8. Item.— At order bought of Mr. Freebairn for 
Mr. William, my Lord’s son, Trrus Livius, 
in a great folio and large print, for 20s. 
Sterlin, sent to Perth by Walker the 
carrier - - 6 00 00 
— June 24, Item.— Paid ie Mr. i Tokay Martine for Mr. 
William and Charles, ther quarter payment 
and for their board from 17th June to 17th 
Sept. p' receipt - 60 00 00 
— July 13. Z4.— —Payd to Charles Metvitl, harchtet in Perth, 
a year’s chamber meal for Mr. William and 
Mr. Charles as p* discharge to Whyts. 


L7l 7 - - - - - 18 00 00 
— Aug. 16. /t.— For cutting Mr. William and Charles 
: hair | - - - - - - - 01200 
— Sept.24. /.--To a Perth carrier for bringing over 
books from Ed*® to Mr. William - 00 06 O 


Jt. — Given out by the Compter for Mr. 

William and Sealed as L pep geules ac- 
ces - - 35 19 00 
— For a pair ar Bee for “Mr. William - 03 12 00 

— Noy. 14. aed from Mr. William Murray, my Lord’s 
son, with one inclosed to his sister Amelie O00 02 00 

— Nov. 19. A letter from Mr. William with one inclosed 

to my lady from St. Andrews - - - 00 02 00” 





* On examining this account I was much surprised at the seeming enormously 
high price of books in Scotland in the beginning of the last century, till I dis- 
covered that it is kept in Scottish currency —by which the pound, which was 
once the same all over Europe, being a pound of silver according to the standard 
of Troyes, and was reduced in England to one-third of its original yalue, — in 
France to 10d., — was reduced in Scotland to ls. 8d. of English currency ; — 
so that the price of Casar’s Commentaries, instead of being 11. 4s,, was only 
2s. Of course all the other items are to be lowered in proportion. 


LIFE OF LORD MANSFIELD. 


When Mr. Solicitor General Murray was afterwards rising 
into greatness, envious libels upon him sarcastically referred 
to his early education, and the following graphic account was 
given of his schooling at Perth : — 

“ Learning was very cheap in his country, as it might be had 
for a groat a quarter, so that a lad went two or three miles of a 
morning to fetch it; and it is very common to see there a boy of 
quality lug along his books to school, and a scrip of oatmeal for 
his dinner, with a pair of brogues on his feet, posteriors exposed, 
and nothing on his legs.” *. 

Willie Murray approaching his fourteenth year, the time 
was at hand when, according to the system of education then 
and still subsisting in Scotland, he was supposed to have learned 
all that could be acquired at school, and it was in contempla- 
tion to send him to the neighbouring University of St. An- 
drew’s, where some remains of the passion for classical learning, 
kindled by George Buchanan when Principal of St. Leonard’s 
College, still lingered. f 

Much perplexity existed in the family with respect to the 
choice of a profession for him. His father, although he had 
not joined the Earl of Mar or fought at Killiecrankie, was a 
decided Jacobite, and his brother James had followed the 
Stuarts into exile. There was, therefore, little hope of pro- 
motion for any of the family from Court favour as long as 
the House of Hanover should keep possession of the throne. 
The Church offered no resource; for the Nonjuring Episco- 
palians were not even tolerated, and few of the Presbyterian 
livings reached 1002. a year. The law was more hopeful, 
but, from its being the only civil profession in Scotland 
deemed fit for a gentleman, the numbers who followed it bore 
a fearful proportion to its emoluments. 

Upon this subject Lord Stormont consulted James, his 
second son, with whom, although now avowedly belonging 
to the court of the Pretender, and created by the banished 


* Pamphlet entitled “ Broapsorrom,” ; 

+ Having heard asurmise that he actually studied at St. Andrew’s during the 
session 1717-18, I caused a search to be made, through the kindness of my 
friend Sir David Brewster, Principal of the United College of St. Saviour’s and 
St. Leonard’s there —but the only matriculation of any of the family to be 
found is that of his brother Charles: “Cha: Murray fil: Vicecomitis de Stormont, 
matriculated in Coll. D, Leonardi. 1721.” 

x 4 


311 


CHAR. 
XXX. 





AD. 1713 


Delibera- 
tions re- 
specting 
his further 
education 
and his 
profession. 


His bro- 
ther James 
created by 
the Pre- 
tender Earl 
of Dunbar. 


312 


CHAP. 
b.@.@.¢ 


Ap 1718. 


He advises 
that Willie 
should be 
sent to 
Westmin- 
ster. 


LIFE OF LORD MANSFIELD. 


sovereign EARL or Dunsar, he still indirectly kept up an 
affectionate intercourse. 

This gentleman, who is said to have possessed the same 
shining abilities and silver-toned voice as William, when he 
had reached his eightieth year died an outlaw*, but during 
the early portion of his exile he no doubt expected, like 
another Clarendon, to see the legitimate heir restored to the 
throne and to rule Britain in his name. He had been bred 
to the bar in Scotland, and probably would have gained 
great forensic eminence had it not been that in the year 
1710, before he had made much progress in his profession, 
he was returned to the House of Commons as representative 
for the Elgin district of burghs. He thereupon went up to 
London, and enlisted himself under the banner of Boling- 
broke, professedly belonging to the high-Tory and secretly 
abetting the Jacobite cause. He was thus naturally intro- 
duced to Bishop Atterbury, then Dean of Westminster, and 
by political sympathy he gained the confidence of this daring 
prelate, who, when others quailed, himself offered in his lawn 
sleeves to proclaim James III. When, at the death of 
Queen Anne, Bolingbroke’s plot to bring in’ her brother 
failed, and George I. quietly succeeded as if by hereditary 
right, James Murray followed the example of his leader, and, 
much more steady and trustworthy, he always remained 
true to the Stuarts, notwithstanding their imbecility and 
their bigotry. He hoped to draw over his brother William, 
of whose sprightly parts he had heard much, to the same 
side. or this purpose he thought there could be no means 
so effectual as having him educated under the auspices 
of Atterbury. He therefore wrote back to his father a 
flaming account of Westminster School, — mentioned the 
distinguished men he had become acquainted with who had 
been reared there, —stated that, with proper management, 
the expense of starting a boy there was not considerable, — 
hinted at the interest he still had which might be made avail- 
able to have Willie put upon the foundation as a King’s 
scholar,—pointed out the certainty of his obtaining a scholar- 


3 ne He died at Avignon in 1770, and was fifteen years older than Lord Mans- 
ield. 


LIFE OF LORD MANSFIELD. S13 


ship at Christ Church,—and showed how, in that case, every CHAP. 
thing would be open to him in the church and in the state. ie 

The plan seemed so feasible, that at a family council it was 
unanimously approved of, and Willie was delighted with the 
prospect of speedily seeing all the wonders of London instead 
of pining in the gloomy cloisters of St. Andrew’s, or being 
overpowered by black smoke and bad smells in Auld 
Reekie. 

He was to perform the whole journey on horseback, — Willie to 
riding the same horse. Post-horses were not established till ape 
long after. There were then two or three times a month 
traders from Leith to the river Thames, in which passengers 
might be accommodated; but, if the wind was foul, they 
were sometimes six weeks on the way. <A coach, advertised 
to run once a week from the Black Bull in the Canongate 
to the Bull and Mouth in St. Martin’s le Grand, did not 
promise to arrive before the tenth day, and, besides being 
very incommodious, was very expensive. Mr. William was 
therefore to be carried on the back of a “ Galloway,” or pony 
which my Lord had bred, and which was to be sold on his 
arrival in the great city to help to pay the expenses of his 
outfit there. 

On the 15th of March, 1718, he joyfully bade adieu to He bids 
Mr. Martine and his school at Perth, and expected easily to eae i 
reach Edinburgh the same day; but near the Queen’s Ferry country. 
the horse fell lame, and it was necessary to leave him behind, 
the rider travelling the rest of the stage on foot. 

Having completed his equipment at a shop in the Luckin- 
booths, and his horse being again sound and serviceable, on 
Saturday, March 22d, he left Edinburgh for Camlongan, 
where he was to take leave of his parents. * 


A.D. 1718. 


* T find the following entries in Mr. Barclay’s accounts connected with these 
occurrences ; but they add very little to the information we have from other 
sources ; — 

“1718, March 22. Mr. W™, my Lord’s son, taking jurney here this 
day for Camlongan — payd by me at the stable to a ferrier 
for the horse brought in lame here by Cameron on Sunday 
the 16th under coure till this day, 4s. Ster. - - - £2 08 00 
It. Att Corsons Lord Inverurie’s governour Denbres’ 2 sons 
and governour conveying Mr. Wm. to his horse ee be 
Sandie Orane for morning drink - - ~ - £3 8 
Nora Mr. Wm, payed 9s. Ster, for keeping the horses att Robt Corsdns himself,” 


314 


CHAP. 
XXX. 


av. 1718. 


His 
journey. 


LIFE OF LORD MANSFIELD. 


We have no information respecting the parting scene; 
but we need not doubt that it was very tender on both sides. 
An assertion may be hazarded that much good advice was 
given, and that warm promises of good conduct were sin- 
cerely reiterated. An old ash-tree is still shown in Dumfries- 
shire under which, according to tradition, Lord Mansfield 
received his father’s blessing. It is a melancholy fact that he 
never saw either parent more. 

But whatever forebodings he may have had, they were 
soon dispelled when he found himself on the high road lead- 
ing from Dumfries to Carlisle, —when he felt he was his own 
master, — when he told over the money with which he was 
intrusted to pay his expenses on the way, — when he thought 
of the various counties through which he was to pass, some 
of which were greater than Perthshire, which he had con- 
sidered sufficient for an empire, — when he figured to himself 
the King he was soon to see with a golden crown on his head,-— 
and when his bosom swelled with the proud certainty that he 
could never more be in danger of the taws. As we imagine 
him to ourselves trotting along and communing with himself, 
it is impossible not to be struck with the similarity of his 
situation to that of Gil Blas, when this unlucky youth, 
having received the blessing of his parents, started on his 
uncle’s mule from Oviedo on the road to Pegnaflor, with the 
intention of studying at the university of Salamanca. But 
the Scotsman had much less vanity and much more prudence. 
Therefore he was not mystified by a parasite, he was not 
cheated of his horse, he did not become a companion of high- 
waymen, and he safely reached his destination. The only 
particulars that we know of his journey are, that he slept the 
first night at Gretna Green, which had not yet acquired its 
hymeneal reputation, English runaway marriages then and 
long after being celebrated in the Fleet and Mayfair, — and 
that he was much struck, the following day, with the for- 
tifications of Carlisle, which appeared formidable to an un- 
military eye, although a few years later the place, after a 
short siege, surrendered, first to Prince Charles and then to 
the Duke of Cumberland. He followed the same route 
which was taken by the rebels as far as Derby, and if they 


LIFE OF LORD MANSFIELD. 


had boldly dashed on, as he still did, they might, like him, 
have carried all before them in London. 

His long, but not wearisome, journey was concluded on the 
8th of May, 1718. He had been consigned to the care of 
one John Wemyss, an emigrant from Perth, who had settled 
in London as an apothecary, and had thriven there very 
much by his skill, attentiveness, and civility. This canny 
Scot had been born on the Stormont estate, and was most 
eager to have it in his power to be of service to any of that 
family. He did all that was necessary to launch Mr. William 
in London, by assisting him to sell his horse, by advancing 
him money and making payments for him, by buying him a 
sword, two wigs, and proper clothes, by entering him with 
the head master of Westminster School, and by settling him 
at a dame’s in Dean’s Yard. The following are a few items 
in the account which he afterwards rendered in to Lady 
Stormont, and they give a more lively notion of the customs 
and manners of the time than could be gathered from whole 
pages of dull narrative, explanation, and dissertation : — 


Lib. sh. d 
“1718. May 8. ffor y® carriadge Mr. William’s Box and 
bringing it home - - =P OOM s 
ffor his horse before he was PRR - - see OS ad 
To Dr. ffriend for entrance - - = LOI. 
ffor a Trunk to him ffor his cloaths - ad bs 1 BOO 
To his ee erigt where he Han for oak! 
money - - - - 5LOS 20 
— 25. ffor a sword to int - - - - =e “ONTO 
ffor a belt - - - - - - PS ree 
ffor pocket money to him - - - = ae SUS oe 
June 5. ffor pocket money’ - - . - = Wes tt 
ffor two wigs as per receit - - - ot Pr AA, 
— 18. ffor a double letter Te Peskse money to 
him - - - ie Reo 
Aug. 16. To Mr. William who tht yt the Countrey- . 6 
Dec. 17. Three guineas to the masters and a double 
letter - - = 5 a d- 
1719. Jany. 4. ffor pocket money 5 pail: and the’ ij to Dr. 
Friend 3 guineas - 3:8 
— 21. To Mr, W™. to Treat vith, before the" Elec- 
tions began - - - ohet 2 VEL SO 
Pay’d the Taylor as p bill - Oe Oia 
Pay’d Mrs, Tollet for ? years Board ata for 
things laid out for him as p™ bill - - 20.10 4% 


William Murray was a good boy, and stuck very steadily 
to his books. His strange dialect at first excited a little 


315 


CHAP. 
XXX. 


A.D. 1718, 
His arrival 
in London, 


Received 
and taken 
care of by 
a Scotch 
apothecary. 


Items of 

disburse- 
ments for 
him, 


William 
Murray at 
Westmin- 
ster, 


316 


CHAP. 
XXX. 


A.D. 1719. 


Letter 
from the 
kind apo- 
thecary to 
his mother 
respecting 
him. 


LIFE OF LORD MANSFIELD. 


mirth among his companions, and they tried to torment him 
by jokes against his country; but he showed his blood, and 
they were speedily soothed by his agreeable manners, and 
awed by the solidity of his acquirements. | 

At the end- of a year (as his brother James, Earl of Dun- 
bar, had foretold), he was elected a King’s scholar.* Beyond 
his own merits there must have been some powerful interest 
required to procure this step, for Westminster School was 
then crowded, and the foundation was much coveted. I 
suspect that Bishop Atterbury had said a good word for the 
scion of a noble Jacobite family, —but of this there is no 
positive evidence. 

Soon after, Mr. Wemyss, the apothecary, wrote the follow- 
ing letter, addressed— 


(73 To 
The Right Honble 
The Viscountes of Stormont 
at her house near Dumfries 
By Carlisle Bag. 


“ Madam,—I humbly beg pardon for my long silence ; had 
there been anything of moment to impart to your La? I shou’de 
not have fail’d to have writen. Y*" LaP no doubt has heard that 
y* son Mr. William has not only had merit but good luck to be 
chosen a queen’s schollar, ffor I can tell y™ LaP that there is favour 
oftner that prevaills against meritt, even in this case as we'll as 
in other affairs of the world. Tho’ give him his due there can’t 
be a finer youth or one who minds his busines more closely. 
Y* LaP sees that he spends a good deall of money. But he won’t 
spend near so much next year. 

“JT got 40 guineas, so y™ La? will see that I have laid out 
twelve pounds two shillings and 7d. more then I rect. I beg 
y™ La? wou’d cause pay it in to Mrs. Janet Cunningham, at her 
mother’s house, Cannongate Cross, Edinburgh —the mother is my 
aunt, her name Wemyss— for it will be cal’d for pretty soon. I 
think to remitt some moey next week to Scotland; so if yt LaP 
pleases I shall lay out what moey you think fitt in paying the 
other bills, w°> will save you the exchang. My cusine will give 
you a receit of the moey when it is pay’d her at Ed', w° shall 


* 21 May, 1719. (Printed list of King’s Scholars.) 


LIFE OF LORD MANSFIELD. 


be sufficient.* Yr LaP ffriends abroad are weill.t Pardon the 
trouble of my long lve. I had no mind to send the bills in this 
letter because of its bulk. But I shall next week in a ffrank. 
“Tam, Madam, 
“ Yr LPs most obedient humble servant, 
“« J. Wemyss. 
** London, May 2]. 1719.” 
During the next four years of Mr. William’s career at 
Westminster School the following is the only anecdote of 
him handed down to us : — 


*‘ Lady Kinnoul, in one of the vacations, invited him to her 
home, where, observing him with a pen in his hand, and seem- 
ingly thoughtful, she asked him ‘ if he was writing his theme, and 
what in plain English the theme was?’ ‘The schoolboy’s smart 
answer rather surprised her ladyship — ‘ What is that to you ?’ 
She replied, ‘How can you be so rude? I asked you very civilly 
a plain question, and did not expect from a schoolboy such a pert 
answer. The reply was, ‘Indeed, my lady, I can only answer 
once more, What is that to you?’ In reality the theme was 
QUID AD TE PERTINET.” f 


I find general statements of his diligence and rapid pro- 
gress in his studies : — 





* There is an item in Mr. Barclay’s accounts showing that the balance had 
been paid by him ; — 
“1719. Oct.17. It. Paid to Mrs. Janet Cuningham 22 Jib. 5s. 9d. 
ster., on accompt of Mr. Wm. Murray, my Lord’s son, 
on Mr. Wemyss letter to Mrs. Janet, and Mrs. Janet’s 
receipt and my Lord’s verball order at Scone to pay it. 
Inde - - - - - - - - - 267 09 00” 
Money for Mr. Wm.’s use appears to have been remitted by Mr, Barclay to 
Mr. Wemyss : — 


“1720. Jany. 28. Jt. To Peter Crawfurd, factor, fora bill of £25 
ster,, drawn by him payable to the Compter on George 
Middleton Goldsmith in London, and indorsed by the 
Compter at my Lord’s order to James Weems, Apo- 
thecarie in London, for behoof of Mr, William Murray, 
my Lord’s son—the money and exchange to Peter 
Crawfurd being £25 10s. Inde - - - - £306 00 00” 

The bill had duly reached its destination, as appears from the following 
acknowledgment ; — 

“ Sir, — This comes to acquaint you that I have received the bill of 25 lib. 
sent by my Lord Stormont’s order for the use of his son Mr. William, who is 
very weill, From “ Sir 

« Yt humble Serv‘. 
«“ June 26. 1720.” «“ Jo. Wemyss. 

+ This is probably a dark allusion to the court of the Pretender. 

¢ Holliday, p. 2. 


317 
“CHAP, 
XXX. 


A.D, 1719 
—17283. 


Anecdote 
of him 
while at 
Westmin- 
ster. 


3]8 


CHAF? 
XXX, 


A.Dd. 1719 
—1723. 


He is 
elected a 
scholar of 
Christ 
Church and 
goes to 
Oxford. 


LIFE OF LORD MANSFIELD. 


“ Fortunately,” says a respectable biographer, “ the school had 
never been ina more flourishing condition than at the period when 
he entered it. ‘The number of the boys amounted to five hundred ; 
and, besides the advantage of having for their daily instructors 
two such eminent scholars as Doctors Friend and Nicholl, they 
were examined at elections by Bishop Atterbury, who attended in 
his capacity of Dean of Westminster, Bishop Smalridge as Dean of 
Christchurch, and ‘Bentley as Master of Trinity College, Cam- 
bridge. The learned rivalry of such men could hardly fail to 
excite a corresponding emulation among the young scholars who 
were in the habit of witnessing it; and in the constant compe- 
tition of talent to which this excitement must have given an 
additional stimulus, none shone more conspicuous than Murray. 
It is particularly recorded of him that his superiority was more 
manifest in the declamations than in any of the other exercises 
prescribed by the regulations of the school, — a fact not to be over- 
looked in the history of one who afterwards, as an orator, equalled 
if not excelled such competitors as it falls to the lot of few nations 
or ages to possess. His proficiency in classical attainments was 
almost equally great.” * 

‘“‘ During the time of his being at school,” says another who was 
actually his chum, “ he gave early proof of his uncommon abilities, 
not so much in his poetry as in his other exercises, and particularly 
in his declamations, which were sure tokens and prognostics of 
that eloquence which grew up to such maturity and perfection at 
the bar and in both houses of parliament.” ¢ 

Certain it is that, at the election in May, 1723, after a 
rigorous examination, it was found that William Murray was 
still “ Dux,” for he stood the first on the list of the King’s 
scholars who were to be sent on the foundation to Christ 
Church. The following is an exact copy of his admission 
there : — 


“ Trin. Term. 1723, June 18. 
id, Xti. Gul. Murray 18, 
David f, Civ. Bath. 
C. Som. V. Com. fil. T. Wenman, C. A.” 


It will be observed that the place of his nativity is de- 
scribed as Bath instead of Perth. ** Sir William Blackstone is 
said to have mentioned this curious circumstance to the Lord 


* Welsby, Lives of Eminent Judges, p. 370. 
t+ Bishop Newton, p. 21. 


LIFE OF LORD MANSFIELD. 


Chief Justice of the King’s Bench while he had the honour 
to sit with him in that court; when Lord Mansfield answered 
‘that possibly the broad pronunciation of the person who gave 
in the description was the origin of the mistake.” * This 
person was no other than himself, and he most likely misled 
the registrar by aiming at an English pronunciation, and 
calling the place Parth,—being still under the delusion, 
which holds some Scotsmen all their lives, that what is not 
Scotch in pronunciation and in idiom must necessarily be 
English. ¢ 

At this period of his life it was intended that he should 
take orders in the English Church; and his family, if they 
did not hope that he would rise to be Archbishop of Canter- 
bury, reckoned with confidence upon his being comfortably 
placed in a good college living. This last, probably, would 
have been his fate, and he would have been noticed after 
his death only in the parish register or in a pedigree of the 
Stormont-Murrays, had it not been for the accidental inter- 
ference of an English nobleman wholly unconnected with 
him by blood or affinity. When he first left home, the 
notion of his being called to the bar in England had been 
talked of, but had been abandoned upon ascertaining that the 
expenses of a legal education were far greater in England 
than in Scotland, and would much exceed what the noble 
Viscount his father could afford. The young man himself 
acknowledged the necessity imposed upon him of taking 
orders; but when at Westminster School, having occasionally 
visited the great hall and heard the pleadings of Yorke and 
Talbot, he felt (as he described it) “a calling for the pro- 
fession of the law,” and he regretted that he could not try 
the effect of his eloquence at the bar rather than in the pul- 
pit, notwithstanding the advantage which, as an ecclesiastical 
orator, he would enjoy of being freed from all apprehension of 
immediate refutation or reply. About the time of his re- 


* Holliday, p. 2. 

+ In this instance he might easily have been misled by analogy, which can so 
little be trusted in English pronunciation, as e before r is often pronounced like 
an a: — Berkshire, Barkshire; Clerk, Clark ;. Serjeant, Sarjeant. Pand Bare 
easily misunderstood for each other; and the r would be hardly discernible 
between a and th; — so that we have Perru converted into Barn. 


319 


CHAP. 
XXX. 


A.D. 17235 


His desti- 
nation , 
changed 
from the 
Church to 
the Bar. 


320 


CHAP. 
XXX. 





AvDad L235 
1724. 
Assistance 
afforded 
him by the 
first Lord 
Foley. 


While at 
Oxford he 
is entered 
of Lincoln’s 
Tnn. 


His studies 
at Oxford. 


“LIFE OF LORD MANSFIELD. 


moval to Oxford, he had casually mentioned his disappoint- 
ment to a schoolfellow, a son of the first Lord Foley. This 
peer, who had amassed enormous riches from the invention of 
manufacturing iron by means of coal instead of wood, pos- 
sessed a liberal and enlightened mind, and, having seen 
William Murray at his country house during the holidays, 
had discovered his genius, and had taken a fancy for him. 
Hearing that, on account of the narrow circumstances of his 
family, he was going, rather reluctantly, to prepare himself 
for ordination, instead of following the bent of his genius to 
study the law, he, in the most generous and delicate man- 
ner, encouraged him to enter a career for which he was so 
well qualified, and undertook to assist him with the requisite 
supplies till the certain success which awaited him should 
enable him to repay the advance with interest. The offer so 
handsomely made was frankly accepted, and it had the aus- 
picious result of establishing a real friendship between the 
parties notwithstanding inequality of years. 

With the consent of his family, the arrangement was made 
that Murray should be entered of an Inn of Court while he 
remained an undergraduate at Oxford; and, on the 23d day 
of April, 1724, he became a member of the Honourable Society 
of Lincoln’s Inn, although he did not begin to keep his terms 
there till he had taken his bachelor’s degree. * 

He resided at Oxford near four years, and made all his 
studies subservient to the profession which of his own liking 


* « Honbis Willus Murray filius p". honblis Vicecomitis Stormont admissus 
est in Societatem hujus Hospicii vicesimo tertio die Aprilis anno regni Dni or] 
Georgii Dei gra Magne Britanniz Fra & Hibnie Regis, &c. decimo annoq. 
Dni 1724. Et solvit ad usum Hospicii p'. d. £3 3s. 4d. 

Will. Hamilton, 
A. V. Hamilton. | 
“ Admissus. John Washer.” 

Half.the dues for which he was liable before he began to reside and keep his 
terms was afterwards remitted to him : — 

« At a Council held the 12th day of November, 1728. 

“Upon the petition of the Hon!e William Murray, Esq'. a fellow of this 
Society, praying leave to compound for his absent Comons, it is Ordered that he 
be at liberty to compound for the same on paymt of half wt is due to the 
Treasurer of this Society before the next Council; but if the said Mr. Murray 
shall within two years from this time be called to the Barr, sell his Chamber, or 
leave this Society, then it is Ordered that in either of the said eases he shall pay 


the remt of wt is due for his Absent Comons.”—Books of Lincoln’s Inn. 


“ Manucaptor 


LIFE OF LORD MANSFIELD. 


he had adopted, —his energy being doubled from his con- 
sidering the responsibility he had incurred, by deviating from 
the beaten track to obscure competence which lay open 
before him. 

We have not any minute account of the disposition of his 
hours during his residence at Oxford, but we know that he 
escaped pretty well the two great perils to which he was 
exposed, “ Port and Prejudice.” While Henley and other 
contemporaries were fostering the gout, and insuring pre- 
mature old age, he preserved his constitution unimpaired. 
There is reason to think that he still inwardly cherished the 
high-Tory, or rather Jacobitical, principles which he had 
imbibed under the paternal roof; but he prudently con- 
cealed them, except on very rare occasions when he was 
heated by wine. Strange to say, in the atmosphere of bigotry 
which he breathed, although himself sincerely attached to the 
episcopalian form of church government, he entertained and 
professed liberal sentiments on religion, and strenuously 
advocated the cause of toleration against the universal voice 
of his companions, who, while they would have hesitated 
about burning Dissenters, were eager rigidly to enforce 
against them all the statutes by which they were deprived 
of civil privileges. 

Regular in chapel and at lecture, he did not neglect the 
peculiar studies of the place; and, without joining in the 
superstitious worship of Aristotle, he had the discernment to 
discover and the candour to acknowledge this philosopher 
to be the greatest master who had yet appeared, not only of 
the art of reasoning but of politics and literary criticism. 
Such discipline he submitted to in deference to authority: 
when he gratified the passion of his own bosom he devoted 
himself to Oratory, by which his grand objects were 
to be accomplished. Those who look upon him with ad- 
miration as the antagonist of Chatham, and who would 
rival his fame, should be undeceived if they suppose that 
oratorical skill is merely the gift of nature, and should know 
by what laborious efforts it is acquired. He read systema-~ 
tically all that had been written upon the subject, and he 
made himself familiar with all the ancient orators. Aspiring 

VOL. II, ne 


321 


CHAP. 
XXX, 


A.D: 1725 
—1727. 


He devotes 
himself to 
the art of 
oratory. 


322 


CHAP. 
d.0,.0.% 


A.D. 1725 


—1727. 


His Latin 
Essay cri- 
ticising 
Demos- 
thenes. 


LIFE OF LORD MANSFIELD. 


to be a lawyer and a statesman, Cicero was naturally his chief 
favourite; and he used to declare that there was not a single 
oration extant of this illustrious ornament of the forum and 
the senate-house which he had not, while at Oxford, trans- 
lated into English, and, after an interval, according to the 
best of his ability, retranslated into Latin. 

He likewise diligently practised original composition, both 
in Latin and English, knowing that there is no other method 
by which correctness and condensation in extempore speaking 
can be acquired. From the fatal conflagration which de- 
stroyed his papers in 1780 there was preserved a fragment of 
a Latin Essay, written by him on the chef d’euvre of De- 
mosthenes, Ilgpt Xtépavov. A few extracts from it may 
show his acquaintance with the dialect which he used, and 
his tasteful appreciation of the divine composition which he 
criticised. After stating the occasion of the oration, and 
analysing its different divisions, he exclaims — 

“¢ Qua solemnitate exordii animos auditorum incitat! Deosque 
deasque omnes benevolentiz suze in civitatem testes adhibet ! 
Quam sibi modest&é meritorum in cives suos commemoratione ad 
se audiendum munivit viam! Dum nihil aliud videtur elaborare 
quam ut cum quo animo judices audiant, efficit ut prosequentur 
benevolo. Mentibus omnium ad lenitatem misericordiamque erga 
se revocatis, de legibus pauca disceptat. Qua subtilitate /Xschinis 
interpretationem oppugnat et evertit, suam defendit et probat: 
Quam acuta et enucleata est hac tota disceptatio, quam pressa ! 
Festinat enim ad res suas pro Republica gestas (quod validissimum 
cause firmamentum videbatur) orationem convertere et in uberiori 
administrationis suze campo spatiari.”’ * 

Thus he praises the transition to invective, when the orator, 
like the dew descending in the evening on a parched field, 


¥ « With what solemnity his exordium seizes the hearts of his audience! He 
adduces all the gods and goddesses as witnesses of his love for his country. 
With what a modest reference to his own services does he prepare the way for 
a favourable hearing! While he professes only to implore that they will listen 
to him with the impartiality of judges, he renders them all eager for his ac- 
quittal. Their minds being thus softened towards him, he proceeds briefly to 
consider the legal and constitutional principles by which the cause was to be 
decided. With what subtlety does he combat and destroy the positions of 
ZEschines — while he defends and establishes his own! How acute, how terse, 
and how condensed is this portion of his discourse! For he hurries on to his 
own measures and to his administration of public affairs, upon which judgment 
was to be pronounced.” 


LIFE OF LORD MANSFIELD. 


323 


had soothed the indignation excited by the peroration of his CHAP. 


antagonist : — 


XXX. 





. © Quis flexanimam Demosthenis potentiam digne explicaverit - 
p > AD. L725 
qu summissio placidoque principio in animos omnium, velut in —1727. 


accensos agros taciturno roris imbre leniter fluentes incendium 
quod reliquerit A‘schines extinguit, populique furorem placat. 
Mox vehemens et acer vi quidem incredibili auditores extra se, 
contra /Eschinem calumniatorem odio, mercenarium Philippi con- 
temptu proditorem patriz ira rapit.” * 

In conclusion he draws a parallel between the respective 
chiefs of Greek and Romon eloquence; giving on this occa- 
sion the preference to the former, although the latter was 
known really most. to have occupied his time, and to have 
engaged his affections : — 

“ Demostheni, qui sub historici persona oratorem celat, qui 
~ felici e& audacia quam veritas sola parit, beneficiorum cives, bene- 
volentiz suz Deos testes adhibet, credimus et favyemus. Cicero, 
placatis judicum animis quantum ipsi patiuntur accepit, tanta 
tamen ejus facundia, ut quidvis impetrare posse videatur. Non 
petit Demosthenes sed rapit, sed impetu quodam pene divino, 
sententias de eorum manibus extorguet. Dulei Ciceronis arte 
veluti Sirenum cantu, delectati judices cum illo malunt errare, 
quam cum aliis recté sentire. Demostheni tanta auctoritas inest, 
ut pudent dissentire, et cum fulmine eloquentia ¢ransverse feruntur 
auditores, non oratoris arte abripi, sed naturam sequi, sed rect 
rationi se parere credunt. Cum orationes suas contra Clodium 
aut Catilinam figuris auget, elocutione Tullius exornat, circum- 
stantis populi clamoribus etiam admiratione excipitur. Cum De- 
mosthenes contra Auschinem iis affectibus, qui ab tpsa natura 
oriuntur, suam animat iracundiam, dicentis obliviscuntur Athe- 
nienses, et (ut histori proditum est) eodem furore omnes inflam- 
mati mercenarium JEschinem appellant.” f 

* « Who shall ever be able to explain the mastery of Demosthenes over the 
human affections? Beginning in a mild and subdued tone, like dew gently 
descending on the parched fields, he extinguishes the flame which schines had 
raised, and soothes the popular fury. But soon after, having become vehement 
and sarcastic,—-with miraculous force he controls at will the feelings of his 


hearers, and holds up Aschines to their indignation, hatred, and contempt, as a 
calumniator, as the mercenary tool of Philip, and as the betrayer of his native 
land.” 

t “ When Demosthenes, concealing the skilful advocate under the disguise 
of a plain narrator of facts with that felicitous boldness which is supposed 
to spring from truth alone, appeals to his fellow citizens as witnesses of the 
benefits he has conferred upon them, and to the Gods themselves to prove the 
ardent patriotism that had ever animated his bosom, we implicitly believe all he 


¥ 2 


324 


CHAP. 
XXX. 





Ac. 1727. 
He gains 
the Latin 
prize poem 
on the 
Death of 
George I. 


LIFE OF LORD MANSFIELD. 


This criticism shows that Murray, long before he ever 
spoke in public, had reflected much and deeply on the prin- 
ciples of the art in which, with a view to the distant future, 
he was earnestly endeavouring to improve himself, and that 
he had been early accustomed to calculate by what means a 
particular effect is most likely to be produced on the passions 
or the understandings of a popular assembly. 

He continued, but with far less success, to cultivate the 
Muses in the mechanical fashion which he had learned at 
Westminster; and, on the death of George I., he entered 
into a competition with all the most accomplished versifiers 
then at Oxford to celebrate the praises of that poetry-hating 
monarch.* 

The art of grinding Latin verses must then have been 
extremely low at Oxford, for Murray’s poem gained the first 
prize. Ido not pretend to be by any means a nice judge of such 
compositions, but it seems to me a very wretched production, 
and I could point out much better imitations in the Musa 
Epinenses. Thus he begins with a description of the 
terrible blow by which the sword of fate had deprived the 
United Kingdom of GrorGE, the conqueror of the Rhine 
and of the Danube: — 


says, and, warmly taking his side, we are impatient to see him vindicated and 
rewarded, Cicero having convinced the understandings of the judges before 
whom he pleads, they, after deliberation, pronounce in his favour the sentence 
which they think just; the eloquence displayed by him, however, being so 
brilliant, that we conceive there is nothing which would not be conceded to it. 
Demosthenes does not ask —he seizes — by an energy almost divine, he wrests 
from the hands of the judges the sentence which he desires. Being captivated 
by the witching art of Circero as by the song of the Sirens, they are better pleased 
to go astray with him than to decide righteously with others. Such authority 
does Demosthenes carry along with him, that his hearers are ashamed to differ 
from him, and, when struck by the lightning of his eloquence, they do not seem 
to be carried away by the art of the orator, but believe themselves to obey a 
natural impulse, and to yield to the dictates of right reason. When Cicero orna- 
ments with the choicest figures of rhetoric and beauties of language his decla- 
mation against Clodius or Cataline, he is received with the admiration and 
plaudits of surrounding multitudes. When Demosthenes kindled rage against 
his accuser by giving vent to feelings which seem to rise spontaneously in the 
human heart, the Athenian people forgot the crimes imputed to the accused, 
and (as history relates), all inflamed with the same fury, hooted at /Eschines 
as a wretch who had been suborned to bring a false charge against an innocent 
man.” 

N.B. I am afraid that, from long disuse, ‘my translation is very imperfect, 
although I once was accustomed to the exercise from which Murray is supposed 
to have derived such advantage. 

* Trying to speak English, when refusing to allow a poem to be dedicated 
to him, he exclaimed, “ I hate all Boets and Bainters !” 








LIFE OF LORD MANSFIELD. 


“ Quo percussisti Britonas conjunctaque regna 
Ictu, Fati ensis! trepidant ipsa atria regum 
Ingentemque stupet meerens Europa ruinam, 
Georgius ocecubuit Rheni pacator et Istri: 
Et dubitamus adhue animam accumulare supremis 
Egregiam donis ? quondam decus omne Britannis 
Spargite flore pio cineres, oleeque Minerva 
Inventrix, et Phoebe pater, cui laurea cura! 
Hie Juvenis laurum sovit, longzvus olivam.” * 


After expatiating at great length upon the achievements 
and virtues of the deceased, lest the nation should be thrown 
into absolute despair by such a heavy privation he concludes 
with a panegyric on the “other hope of Britain,” under 
whose enlightened sway they were about to live, and who 
was not less tenderly beloved by the gownsmen of Oxford 
than by his spouse, Queen Caroline : — 


« Tu tamen interea, quondam spes altera gentis 
Nunc decus et columen, populo plaudente, Britanno 
Succedis Solio ; ordinibus discordia cessit 
In te diversis, patria vox una salutat. 

Hos inter plausus procerum plebisque benigno 
Accipias Rex ore, vovet tibi terga togata, 

Que, studiosa cohors operum! pars parva tuorum 
Non ingrata tamen ; quoniam nec amantior ipsa 
Est Carolina tui, licet illi pronuba Juno 

Et Venus eterna cinxerunt pectora flamma.” 


* « Thou sword of fate, with what a fearful blow 
Hast thou made England shake from top to toe. 
Lo! Windsor’s royal halls are fill’d with dread ; 
And Europe, stunn’d, laments the mighty dead. 
See George, who both the Danube and the Rhine 
Subdued and civilised, at last resign 
His throne and breath. And shall the grateful Muse 
Her tribute to such wondrous worth refuse ? 

No; let Minerva strew with Phcebus here 
Her olive with his laurel on His bier, 

Whose warlike youth to laurell’d honour Jed, 
Whilst peaceful olive crown’d his aged head.” 


+ ‘But cease, my Muse, these fond lamenting strains ; 
Our rising hope, and now our glory, reigns. 
Hark to that shout! the people’s joyful tone; 
A second George ascends the British throne ! 
Lo! discord ceases, all at once agree, 
United England looks, Great Sire, to thee. 
Amidst these sounds, whilst all at once rejoice, 
Thy band of Gownsmen raise their loyal voice, 
Though small indeed their offerings seem to prove, 
Deign to behold their merits in their love— 
Not Carolina’s more, — though Juno’s crown 
And Venus’ form have mark’d her for thine own.” 
The poem is signed — 
“Gut. Murray, 
Honoratiss. Vicecom. de Stormont, Fil. 
Edis Christi alumnus.” 
¥ 3 


325 


CHAP. 
XXX. 





A.D. 1727s 


326 
CHAP 
XXX. 


AD. 1727.: 


Origin of 
the rivalry 
between 
him and 
the elder 
Pitt. 


Murray at 
Lincoln’s 
Ton, 





REIGN OF GEORGE II. 


Tt is curious to think that the elder Pitt, between whom 
and the two succeeding Georges there was such mortal enmity, 
on this occasion tried to gain the prize for extolling George I., 
—certainly in no degree superior to them,—and is sup- 
posed, by reason of his disappointment, to have contracted a 
dislike of the fortunate candidate, which he cherished to his 
dying day. No one could then have foreseen the more 
brilliant strife in which the rivals were afterwards engaged 
as leaders of the opposite factions in the state.* 

Murray having taken his degree of B.A., without any 
opportunity of testing his proficiency by Senate-house 
honours, was transferred to London. He obtained chambers 
in Lincoln’s Inn f, and began in good earnest to acquire a 
knowledge of his profession. While at Oxford he had 
attended lectures on the Pandects of Justinian, which gave 
him a permanent taste for that noble system of juris- 
prudence. 

Unfortunately we have only an imperfect account of the 
course of study which produced the most accomplished Judge 
who ever presided in the Court of King’s Bench. We know 
that he owed every thing to private and spontaneous exertion. 
The false maxim on which legal education now rests in 
England, “every man to learn as he likes,” t receives some 
countenance from his example. When there is a combina- 
tion of enthusiasm and steady perseverance, the want of 
means of instruction provided by the state is little felt, and 
tests of proficiency by public examination may be dispensed 
with; but I conceive that, in regard to the great mass of 

* The following is Mr. Macaulay’s criticism on the unsuccessful lines of 
Pitt: —“ They prove that the young student had but a very limited knowledge 
even of the mechanical part of his art. All true Etonians will hear with con- 
cern that their illustrious schoolfellow is guilty of making the first syllable in 
labenti short. The matter of the pcem is as worthless as that of any college 
exercise that was ever written before or since. There is of course much about 
Mars, Themis, Neptune, and Cocytus. The Muses are earnestly entreated to 


weep over the urn of Cassar; for Cassar, says the poet, loved the Muses; 
Czsar, who could not read a line of Pope, and who loved nothing but punch 
and fat women.” — Hssays, li. 150. 

+ Till he had been several years at the bar he lived in a very small set, three 
stories high, No. 1. “Old Square,” then called Gatehouse Court. They were 
pointed out to me when I commenced my career in a similar set, No. 2. three 


stories high, next door ; and there are several entries in the books of the Society 
connecting him with them. 


¢ Or * laissez rien faire.” 


LIFE OF LORD MANSFIELD. 


. students entering a learned profession, it is necessary, by 
institution and discipline, to guide inexperience, to stimulate 
indolence, to correct the propensity to dissipation, and to 
have some assurance that those intrusted with defending life 
and property are decently well qualified for the duties which 
they may be called upon to discharge. 

During the three years that Mr. Murray passed as a 
student in Lincoln’s Inn, all that the benchers required of 
him was to dine in the hall five days each term, and once a 
term to read the first sentence of a paper prepared for him 
by the steward, called “an exercise,” a remnant of the an- 
cient custom of scholastic disputation. But, by an admirable 
disposition of his time, while he mixed in society and still 
attended to elegant literature, he was sedulously and skilfully 
preparing himself to be a great advocate and the greatest of 
judges. 

First, he thoroughly grounded himself in ancient and mo- 
dern history by a perusal of the most eminent original histo- 
rians. He then applied diligently to ethics, which he mastered, 
and from his own experience he always strongly recommended 
the philosophical works of Cicero. But he never showed any 
taste for metaphysics, which were now engrossing the atten- 
tion of his countrymen. The foundation of jurisprudence 
he maintained to be the Roman civil law. Thence he pro- 
ceeded to international law, doing full justice to the learning 
and genius of Grotius, its codifier and almost its founder. 
Next he entered on the feudal law, without which our law of 
real property must be very imperfectly understood. Here 
he showed his discernment by taking for his guide and his 
favourite his countryman CralIG, whose treatise De Frupis 
he justly thought was much to be preferred to any juridical 
work which England had then produced. Next came the 
English municipal law, and this he was obliged to search 
for in very crabbed and uncouth compositions, which often 
filled him with disgust and sometimes with despair. He 
was pleased with Bracton, and could not deny the terseness 
and perspicuity of Littleton; but he never could be made to 
fall down and worship Lord Coke, whom we are taught to 


regard as the god of our idolatry. Nay, he was unjust to 
y4 


327 


CHAP. 
XXX. 


ASDA TAT 
—1730. 


328 


CHAP. 
XXX. 


— 


A. Dae TAy, 
—1730. 





REIGN OF GEORGE II. 


the merits of this quaint and immethodical though learned 
and accurate writer, and used constantly to be laughing at 
his etymologies,—as, that “ parliament is derived from parler 
le ment ;” and his trying to give reasons for all that the law 
enacts, as his defence of the old sentence of mutilation in 
high treason “ to show that the traitor ought to have had no 
ancestors, and should have no posterity.” Indeed, instead of 
being, like Sir William Blackstone, a legal optimist, he did 
not sufficiently appreciate the merits of the old common law ; 
overlooking the love of public liberty displayed by many of 
its maxims, and its admirably contrived machinery for sepa- 
rating questions of law from questions of fact, and for bringing 
a suit to the real point on which it ought to be determined. 
But he submitted to the drudgery of toiling through tire- 
some text-books and rubbishy reports, and he became as well 
acquainted with “collateral warranties” and “recoveries with 
double voucher” as lawyers who, never travelling beyond 
their black-letter lore, venerated these processes as the per- 
fection of human reason. 

Expecting to be employed in appeals from Scotland, which, 
since the Union, were decided at the bar of the House of Lords, 
he paid much attention to the law of that country, and he 
expressed satisfaction with the methodical arrangement and 
precise definitions of Mackenzie and Stair. But his true de- 
light was to dip into the juridical writers of France, that he 
might see how the Roman and feudal laws had been blended 
in the different provinces of that kingdom; and, above all, to 
pore over the admirable commercial code recently promulgated 
there under the title of “ ORDINANCE DE LA MARINE,” which 
he hoped one day to introduce here by well-considered judicial 
decisions, —a bright vision which was afterwards realised. 

He never had the advantage of being initiated in the 
mysteries of legal warfare by any practioner; the pupilising 
system, now in such vigour, having been introduced in the 
following generation by the celebrated Tom Warren* and 
Mr. Justice Buller.t He attended a debating society, where 


* My great-great-grandfather in Law. 

+ Lord Macclesfield and Lord Hardwicke had each sat in a law office before 
being called to the bar; but the former had been an attorney, and the latter 
was intended for one, 


LIFE OF LORD MANSFIELD. 


knotty questions of law were discussed ; and such pains did he 
take in getting up his arguments, that the notes he then 
made were frequently of use to him when he was at the bar, 
and even after he had been elevated to the bench. But his 
principal resource for gaining experience was attending the 
courts at Westminster and listening to the judgments of 
Chief Justice Raymond. He continued to think that, in the 
absence of academical lectures and examinations, such an 
attendance is the best opportunity which candidates for the 
bar enjoy of gaining a liberal knowledge of their profession. 
For this reason, considering it for the public welfare as 
well as for their advantage individually that they should be 
properly instructed, — when presiding in the King’s Bench he 
was in the constant habit of explaining the intricacies of the 
cases tried before him, and giving the reasons of his judg- 
ments, not only to satisfy the parties, but, as he expressed it, 
‘‘ for the sake of the students.” * 

The marvellous circumstance is, that, in the midst of these 
multifarious and severe studies, Mr. Murray was “ drinking 
champagne with the wits.” I am almost afraid to record it, 
lest it should seduce some heedless youths into the false and 
deceitful notion that dissipation is compatible with success 
in our profession. But let them remember, that before he 
went to Will's or Button’s he had been eight or ten hours 
busily employed in professional studies; and that, when he 
associated with gay companions he never so indulged as to 
be prevented from rising to light his own fire next morning, 
or from sitting down to his books with a sound stomach and 
a clear head. Above all, before they expose themselves to 
temptation, let them wait till such noctes ceneque deim as 
were enjoyed by Murray are actually in their power. 

The most intimate and familiar friend he had in the world 
was ALEXANDER Pore!!! To this prince of poets he had 
been introduced, while at Westminster School, by his coun-. 


* I began my legal studentship in the last days of Lord Kenyon. The 
court at Westminster was so constructed, that we could have no communica- 
tion with him; but I have a lively recollection that at Guildhall, the students 
having a box close by him, he handed the record to us, and he would point 
out to us the important issues to be tried. I do not remember that he ever 
publicly alluded to our presence 

¢ Boswell’s Life of Johnson. 


329 


CHAP. 
XXX, 


A.D. 1727 
—1730. 
He attends 
a debating 
society. 


He “ drinks 
cham- 
pagne with 
the wits.” 


His inti- 
macy with 
Pope. 


330 


CHAP 
XXX. 





A.D. 1727 
—1730. 


REIGN OF GEORGE II. 


tryman Lord Marchmont, and a warm and steady attachment 
sprang up between them. The young Scot was at first 
exceedingly flattered and delighted by the notice of a writer 
of such celebrity, whose PasroraLs he had got by heart 
when a child, but whom, till he was sent to England, he had 
never hoped to behold. Afterwards he had the good taste to 
relish the exquisite powers of conversation which the bard 
could display in the company of those he liked, and he was 
touched by experiencing constant kindness from one who was 
disposed to treat nobles and kings with disdain. Pope, on | 
the other hand, intuitively discovered the genius of this juve- 
vile worshipper, was struck by his extraordinary accomplish- 
ments, agreeable manners, ingenuous countenance, and (it is 
said), above all, by the silvery tones of his voice, which seemed 
then, and ever after, to have doubled the effect of all his 
other powers to win his way in the world.* In such favour 
was Murray, that when he had adopted the law as his profes- 
sion, and he came to reside as a student at Lincoln’s Inn, the 
autocrat of the literary world, anxious for his success, actually 
undertook to teach him oratory ;— not the composition of 
orations, but the varying attitudes and intonation with 
which they should be delivered. Murray had frequent in- 
vitations to Twickenham ; and Pope, coming to Lincoln’s Inn, 
would spend hours in instructing him. One day the pupil was 
surprised by a gay Templar, who could take the liberty of 
entering his rooms without the ceremonious introduction of a 
servant, in the act of practising the graces of a speaker at 
a glass, while Pope sat by in the character of preceptor. 
Bishop Warburton accounts for the extraordinary marks of 
kindness which Murray thus experienced: — “ Mr. Pope 
had all the warmth of affection for this great lawyer, and 
indeed no man ever more deserved to have a poet for his 
friend ; in the obtaining of which, as neither vanity, party, 
nor fear had a share, so he supported his title to it by all the 
offices of a generous and true friendship.” f 

* The fanciful may suppose that their harmony arose from vocal unison. 
Dr. Johnson, in his Life of Pope, says, “ His voice, when he was young, was 
so pleasing, that he was called in fondness the little nightingale.” 


+ Annotations on Pope’s Imitation of the Sixth Epistle of the First Book of 
Horace. 


LIFE OF LORD MANSFIELD. 


Lord Mansfield’s biographers represent him as now making 
the “grand tour,” and, from the language they employ, it 
might be supposed that he spent several years in wandering 
over distant lands and sojourning at foreign courts.* He did 
cross the English Channel, but, upon examining dates, it will 
be found that his “travels over the continent of Europe ” 
shrink into a long-vacation trip to France and Italy, which 
most practising lawyers have taken. On the 24th of June, 
1730, after keeping Trinity Term at Lincoln’s Inn, he was 
present in the schools at Oxford, and, with the usual forms, 
received the degree of M.A. On the 23d day of November 
following, he was called to the bar in Lincoln’s Inn Hall; and 
he probably had returned-some weeks previously, to make 
preparations for commencing his professional career.t I 
believe there is not extant any account of his adventures — 
but thus speculates one author, who would have us believe 
that, as Gibbon conceived the plan of his “ Decline and Fall ” 
on viewing the ruins of the Capitol, so Murray was first fired 
with the ambition of being a great lawyer and orator on 
beholding the scene where Cicero had triumphed : — 

*“ At Rome Mr. Murray was probably inspired and animated 
with the love of Ciceronian eloquence; at Rome he was prompted 
to make Cicero his great example and his theme. At Tusculum, 
and in his perambulations over classical ground, why might he 
not be emulous to lay the foundation of that noble superstructure 
of bright fame which he soon raised after he became a member of 
Lincoln’s Inn ?” t 

I make no doubt that, ever industrious and eager for im- 
provement, he turned his jaunt of two or three months to the 
best advantage, and that, having introductions to our ministers 
abroad and to the most eminent literary characters in the 
cities which he visited, he saw, and reflected, and profited 


* Lord Brougham describes him as “enjoying all the advantages of a 
finished classical education; adding to this the enlargement of mind derived from 
foreign travel, undertaken at an age when attentive observation can be accompanied 
by reflection.” (Statesmen, i. 100.) 

+ “Ata Council held the 23d day of Nov. 1730.,—Ordered that the Hon?!e W™ 
Murray, Esq*®, one of the fellows of this Society, being of full standing, and 
having observed the rules of this Society, and performed all his exercises, be 
called to the bar, first paying all his arrears and duties to this Society ; and that 
he be published at the next Exercises in the Hall.” 

¢ Holliday, pp. 9, 10, 


331 


CHAP. 
XXX, 





A.D. 1730. 
His excur- 
sion to 
France and 
Italy. 


He is 
called te 
the bar. 


332 


CHAP: 
XXX, 


A.D. 1730, 


November. 
His accom- 
plishments 
as an ad- 
vocate. 


REIGN OF GEORGE II. 


more in this short interval than the ordinary “sons of earth,” 
who waste years on the Continent, chiefly employed in 
criticising the performances of opera singers, or in exposing 
themselves to ridicule for their determined adherence to 
English prejudices and absurdities. 

When he put on the long robe, it may be safely affirmed 
that there had not hitherto appeared at the English bar a 
young man so well qualified by his acquirements to follow 
the law as a liberal profession. Without having become a 
deep black letter lawyer, he was scientifically familiar with 
our municipal jurisprudence, and capable of conquering 
any particular point in it which he might have occasion 
to encounter. He had made himself acquainted not only 
with international law, but with the codes of all the most 
civilised nations, ancient and modern; he was an elegant 
classical scholar; he was thoroughly imbued with the lite- 
rature of his own country; he had profoundly studied our 
mixed constitution; he had a sincere desire to be of service 
to his country, and he was animated by a noble aspiration 
after honourable fame. <A very different being this from the 
dull plodder, who, having gained a knowledge of forms and 
technical rules, looks only to make his bread by law as a trade 
— or the empty adventurer, who expects to secure wealth and 
high office by a flashy speech ! 


LIFE OF LORD MANSFIELD. 


CHAPTER XXXI. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE 
WAS MADE SOLICITOR GENERAL AND ENTERED THE HOUSE OF 
COMMONS. 


Murray remained at the bar above two years without a 
brief, or, at least, without being employed in a cause of im- 
portance. During this trying interval his courage fully 
supported him, and, although he must have passed anxious 
moments, he still felt the confidence of ultimate success which 
genius sometimes prompts. His friends were most afraid, 
from his literary connections and propensities, that he would 
be induced to relax his resolution to raise himself by the law, 
and that he would attempt authorship or prematurely mix 
in political strife. The recent examples of Addison and 
Prior were very seducing to those who might be disposed to 
prefer the primrose path of poetry. But Murray now, and 
ever after, displayed a rooted attachment to his profession, 
and a firm purpose to establish his reputation by reaching its 
highest honours. He therefore actually declined an offer 
made to him to bring him immediately into parliament, — 
being convinced that a barrister ought not, in prudence, to 
expose himself to this distraction till he is fully established in 
practice and may fairly expect to be appointed Solicitor 
General; and we shall see that he afterwards preferred a seat, 
on the bench to the leadership of the House of Commons 
and the near prospect of being Prime Minister. I do not 
believe that he looked upon the fame of a great judge with 
more respect than that of a great poet or a great statesman, 
but he made a prudent estimate of his own powers. He 
certainly had not sufficient imagination for poetry, or moral 
courage for statesmanship, although his fine understanding 
and his eloquence were sure to command success in the 


CHAP, 
XXXI. 


A.D: 1780 
—1732. 
At first 
without 
business. 


His attach- 
ment to his 
profession, 


334 


CHAP. 
XXXI. 


a.D. 1730 
—1732. 


He takes 
chambers 
in King’s 
Bench 
Walk, 
where he is 
visited by 
Pope. 


His letters 
*¢ on the 
study of 
ancient and 
modern 
history.” 


REIGN OF GEORGE II. 


career on which he had entered. Thus, in the words which 
he himself employed, “he had genius and resolution enough 
to raise himself above the common level; 


‘ Victorque virtim volitare per ora.’ ” 


Never absent from chambers when there was a possibility 
of a client calling to consult him, or from Westminster Hall 
when a diligent young barrister ought to be seen there, he 
still contrived to keep up an intercourse with the witty and 
the powerful. He now took chambers at No. 5. King’s Bench 
Walk, in the Temple; and here Pope frequently visited 
him in the evening, to save him from the suspicion of 
neglecting his profession by haunting coffee-houses, as he 
had allowed himself to do while a student. We may easily 
imagine that the lawyer and the poet occasionally met 
at the Grecian, or Dich’s, or The Devil’s Tavern, which 
were close by,—or in the shop of Lintot between the 
two Temples, or that of Tonson in Chancery Lane; or that 
they went together to the theatre in Lincoln’s Inn Fields, 
to see the performances of Betterton and Mrs. Clive ; — 
but for such meetings [ find no authority; and we must 
tell what we know to be true, not what we consider to be 
probable. 

Murray continued as eager as when he was a student under 
the bar to increase his store of professional learning, and by no 
means (after the common fashion of lawyers who have had an | 
academical education) abandoned liberal studies. Through 
the busiest part of his life he found time to keep up _ his ac- 
quaintance with the Greek and Latin classics, and to gain 
a knowledge of new publications of merit soon after they 
issued from the press. In an interval of leisure he showed 
that he was qualified, ike M. Guizot, the Prime Minister of 
Louis Philippe, to gain celebrity as a professor in a uni- 
versity. or the benefit of the heir of the ducal house 
of Portland, he wrote two very long letters to that young 
nobleman “ On the Study of Ancient and Modern History,” 
— which would constitute an admirable syllabus for a course 
of lectures. Itis with some humiliation that I look to the 
members of the profession at the present day without being 


LIFE OF LORD MANSFIELD. 


able, either at the bar or the bench, to discover any one 
with such an extensive, exact, and philosophical acquaintance 
with historical books, historical events, and historical cha- 
racters. You would suppose that he had lived in every age 
which he describes, — having witnessed the occurrences which 
he narrates, and conversed with the men to whom he presents 
his readers. In ancient history I think he most excites ad- 
miration by his remarks on the causes of the decline of the 
Roman empire, which, even with the assistance of Montesquieu 
and Bossuet, till Gibbon arose few so thoroughly understood. 
The familiarity which he displays with modern history is quite 
astounding,—and I had almost said appalling, for it produces 
a painful consciousness of inferiority, and creates remorse for 
time mis-spent. He seems to have carried in his memory 
every remark of every French historical writer from Philip 
de Comines to Voltaire; and by a few masterly strokes he 
gives a better notion of Clovis, Charlemagne, Louis XI., and 
Henry IV., than is to be gathered from perusing many tomes 
of ordinary bookmakers.* Some will regret that he did not 
devote himself to historical composition, and so wipe off the 
reproach which in this department of our literature attached 
to it before the age of Robertson and Hume. But I must 
proceed to show what benefits he conferred on the community 
in the employments to which his destiny carried him. 

It has often been said that Lord Mansfield “ never knew 
the difference between total destitution and an income of 
30002. a year.” This is a common instance of a perversion 
of truth from a love of the marvellous. He had been above 
seven years at the bar before his gains reached or approached 
this amount; but from his third year, at all events, he had 
very encouraging practice, and he must have been com- 
paratively wealthy. 

He had long before dedicated his first professional earnings 
to the purchase of a set of tea china, with suitable silver 


* Holliday, 12—23. Murray seems to have had rather an excessive ad- 
miration of French genius, to which Scotsmen are liable; and he had a respect 
for Voltaire which few now would have the courage to confess, for, since the 
French Revolution, an indiscriminate abuse of this author has been in England 
the test of orthodoxy and loyalty. 

+ Character of Lord Mansfield by Mr. Buller ; Seward’s Anecdotes, iv. 492.; 
Roscoe’s Eminent Lawyers, 171. 


335 


CHAP 
XXXII. 


A.D. 1730 
—1732. 


336 


CHAP. 
XXXI. 


A DoO1733. 


He pros- 
pers at the 
bar of the 
House of 
Lords. 


REIGN OF GEORGE II. 


plate, for his sister-in-law, Lady Stormont, who, after his 
father’s death, had sent him not only supplies of Scotch 
marmalade, but pecuniary contributions to assist him while 
he was a student at Lincoln’s Inn. 

The earliest success he met with was, as he had anticipated, 
at the bar of the House of Lords. Sir Philip Yorke and 
Talbot were there always opposed to each other as leaders. 
In Scotch cases, Mr. W. Hamilton, a Scotch advocate, 
(father of Single-speech Hamilton,) having settled in London 
soon after the Union, was almost always the junior on one 
side; and Murray, from a good word spoken in his favour by 
his friends to the Scotch solicitors, and from the pains-taking 
disposition for which he soon gained credit, was generally on 
the other. 

He attracted much notice as counsel for the Respondent, 
along with Mr. Talbot, against Sir Philip Yorke and Mr. 
Hamilton, in the case of Patterson v. Graham, heard on the 
12th of March, 1732-3. Although this was an appeal from 
the Court of Session, it excited very lively interest, and per- 
sons in all ranks of life crowded to the bar of the House of 
Lords to listen to the arguments upon it, for it related to the 
South Sea Bubble, which had propagated an epidemic mad- 
ness in the nation. The respondent, residing in the city of 
Edinburgh, to which the malady had penetrated, employed 
the appellant in London to buy some South Sea stock when 
it was at an extravagant height, and was expected to rise 
still higher. But immediately after the purchase it fell down 
to nothing, and was utterly unsaleable and worthless. The 
respondent then sued the appellant for damages, on the 
ground that he had been deceived and defrauded; and the 
Scotch judges, out of compassion to their countryman, de- 
creed that the appellant, the English broker, should re- 
imburse him to the amount of the purchase-money and 
interest at 5 per cent. Mr. Murray tried to support this 
decree by much ingenuity, and by a very striking description 
of the frauds practised by the concoctors of the late gigantic 
conspiracy and the sufferings of their victims. He was un- 
successful; for the House of Lords yielded to the reasoning 
on the other side, that his client had only to blame his own 


LIFE OF LORD MANSFIELD. 


covetousness and credulity, but he excited great admiration 
by the gallant stand he had made in an unequal fight.* 

In a few days after, he gained still higher credit as counsel 
for the young Marquis of Annandale, who was in a state of 
mental imbecility, and whose companion or keeper was the 
philosopher David Hume. The action respected the expenses 
incurred in the funeral of the late Marquis, which had been 
conducted in a style of prodigious splendour, without any 
authority from his executors. There being no decisions what- 
ever in point, the case was to be decided by the principles of 
the Roman Civil Law; and Murray contended, with much 
force, that, according to the just view of the Actio Fune- 
raria, the demand could not be supported. This seemed to 
be the opinion of the House; but their Lordships, not 
deeming it for the honour of the peerage that a tradesman 
should suffer who had wished to do honour to a deceased 
member of their body, deferred giving judgment, and there 
was a compromise between the parties. f 

In the following session he distinguished himself still more 
in a case of Moncrieff v. Moncrieff. Sir Thomas Moncrieff, 
a baronet of ancient family, but of small fortune, with jive 
children, gave the eldest son a liberal education, and wished 
him to embrace some profession to enable him to make his 
way in the world. The young gentleman, however, preferred 
being idle; and, after a course of dissipation, married against 
his father’s consent. Sir Thomas, incensed at his conduct, 
refused to see him till by amendment of life he should de- 
serve forgiveness, but settled upon him an annual allowance 
of 2000 marks Scotch, making 111Z sterling. A process 
was then commenced in the Court of Session against the 
father by the son, who claimed as of right an augmentation 
of this stipend; and the Scotch judges, strangely hallu- 
cinating, decreed him 200/. sterling a-year.— Mr. Murray, 
for the appellant, argued thus: — 

“In the admitted absence of any statute, or positive rule, or 
prior decision upon the subject, will any expounder of the law of 


* Lords’ Journals; printed Case, preserved in the library of the House of 
Lords. 
Ib. Murray’s leader in this appeal was Duncan Forbes of Culloden, after- 
wards President. 


VOL. II. Z 


337 


CHAP: 
XAXXI. 


Ao De 1733. 


1733-34. 


308 


CHAP. 
XXXI. 





A.D. 1734. 


Te is 
counsel 
against the 
bill for dis- 
franchising 
the city of 
Edinburgh 
for the 
murder of 
Captain 
Porteus. 


REIGN OF GEORGE II. 


nature, on which the claim is rested, say that parents who have 
properly reared their offspring are bound to maintain them in 
idleness when they are grown up and by industry might easily 
obtain a maintenance for themselves? or that a son ‘ who 
harkeneth not to the voice of his father,’ and who therefore by the 
law of Moses was declared ‘worthy of death,’ cannot forfeit this 
claim by disobedience ? Sir Thomas Moncreiff has actually allowed 
the respondent a sum sufficient not only to supply him with the 
necessaries, but in that cheap country with all the conveniences, of 
life. That a son, beyond a necessary subsistence, has a right to a 
determinate part of his father’s property to waste in superfluities, 
is what was never pretended in any part of the world. By the 
law of Scotland a man seised in fee simple may disinherit his son, 
which proceeds upon the supposition that he has an absolute power 
over it during his life. If this action is founded on the law of 
nature, nature knows no distinction between the eldest and the 
youngest child, or between a provision for sons and for daughters ; 
and as the appellant has four other children with the same rights 
as the respondent, if this decree stands they are entitled to sue him 
for more than all he has in the world to divide among them, and 
they may leave him to perish for want.” 


The House sustained the appeal, and reduced the allow- 
ance to the sum which the appellant had offered.* 

Murray was complimented several times, both by Lord 
Cowper and Lord Macclesfield, upon the talent he had ex- 
hibited in arguing these cases; and thenceforth he was re- 
tained in almost all the appeals heard at the bar of the 
House of Lords, from whatever part of the kingdom they 
came. 

In 1737 he acquired immense éclat as counsel against the 
bill introduced to disfranchise the city of Edinburgh on 
account of the alleged misconduct of the inhabitants in 
putting Captain Porteus to death. He dwelt with much 
force on the insult about to be offered to the capital of Scot- 
land; he pointed out the injustice of punishing the many for 
the supposed offence of the few; and, although he could not 
justify the violence which had been committed, he strongly 
insinuated that the spirit of wild justice which had been dis- 
played, the calmness and solemnity with which the deed had 


* Lords’ Journals, 1733 ; Holliday, 30, 31. 


LIFE OF LORD MANSFIELD. 


been done, and the utter impossibility of ever detecting, by 
enormous rewards, the individuals personally engaged in it, 
redounded to the honour of the Scottish nation. 

The measure was defeated; the freedom of the city of 
Edinburgh was voted by the corporation to Mr. Murray for 
the zeal and ability he had displayed as their advocate, and 
prophesies were uttered copiously all over Scotland that he 
would one day confer high honour on his country.* Hitherto, 
however, he had fared rather indifferently in Westminster 
Hall. He did not addict himself to any one court in par- 


ticular; but, without a regular flow of business, he went 


where a stray brief might carry him. 

His name does not yet appear in the Common Law or 
Equity Reports; but we know, from his own statement 
when Chief Justice of the King’s Benchf, that, in the year 
1736, he was counsel before Lord Talbot in the great case of 
Buvot v. Barbut, where, from his reputation for acquaintance 
with the law of nations, he was called upon to argue the 
question “ whether a foreign minister can, by engaging in 
commerce, waive his privilege from arrest?” and ‘ whether 
an agent of commerce, or a consul, is entitled to the privileges 
of a public minister?” Although he was too modest to say 
so, we need not doubt that he eminently distinguished him- 
self on this occasion. 

But still his fee-book, when summed up at the end of the 
year, showed only a very moderate figure; and, according to 
the graduated gratitude of the old prothonotary, although he 
ought to have written at the bottom of the page Laus Dro! 
he was not yet called upon for Laus macna!! still less 
Laus MAxima Deo!!! 

- For this reason, in spite of his rising fame, he met with 
a sad disappointment in an affair of the heart. Without 

* See Parl. Hist, vol. x, p. 187. An act was passed merely to disqualify 
Wilson, the Lord Provost, and to impose a small fine upon the city. (10 Geo. 
II. c. 34.) Gilbert Elliot, the ancestor of the Earl of Minto, then a boy of 
fourteen, afterwards Lord President of the Court of Session, and author of the 
song celebrated by Sir Walter Scott in the Lay of the Last Minstrel, “ Ambi- 
tion is no Cure for Love,” wrote an encomiastic copy of verses on Mr, Murray 
for his patriotic exertions, which may be found in Holliday, p.39. They 
are not so promising as might have been expected. 

+ E. T. in Cases temp. ‘Talbot, 181. See Burrow. Holliday must be wrong, 


making it 1754. See case in my Life of Talbot. 
z 2 


3a9 


CHAP, 
XXXII. 





Aste Hine 


He is 
erossed in 
love. 


340 


CHAP. 
XXXI. 


A.D. 1738. 


Comforted 
by Pope. 


REIGN OF GEORGE II. 


being of a romantic turn of mind he was sincerely attached 
to a young lady of beauty, accomplishments, and birth, and 
she listened favourably to his suit; but her family, requiring 
a sight of his rent-roll, were not contented that her jointure 
and pin-money should be charged upon his “rood of ground 
in Westminster Hall,” and married her to a squire of broad 
acres ina midland county. As he was exceedingly dejected 
by this event, his friend Pope tried to cheer him by ad- 
dressing to him an imitation of the Sixth of the First Book of 
Horace’s Epistles (“ Nil admirari,” &c.), thus beginning : — 


«¢ Not to admire, is all the art I know 
To make men happy and to keep them so.’ 
Plain truth, dear Murray, needs no flowers of speech ; 
So take it in the very words of Creech.” 


After pointing out various instances of the vanity of human 
wishes, he thus proceeds : — 


“ If not so pleased, at council board rejoice 
To see their judgments hang upon thy voice ;* 
From morn to night, at Senate, Rolls, and Hall. 
Plead much, read more, dine late, or not at all. 
But wherefore all this labour, all this strife, 
For fame, for riches, for a noble wife ? 
Shall one whom native learning, birth conspired 
To form, not to admire, but be admired, 
Sigh while his Chloe, blind to wit and worth, 
Weds the rich dulness of some son of earth? 
Yet time ennobles or degrades each line ; 
Tt brighten’d Craggs’s, and may darken thine. 
And what is fame? the meanest have their day ; 
The greatest can but blaze and pass away. 
Graced as thou art with all the power of words, 
So known, so honour’d in the House of Lords — * 
Auspicious scene! another yet is nigh, 
More silent far, where kings and poets lie ; 
Where Murray, long enough his country’s pride, 
Shall be no more than Tully or than Hyde.” 


Murray, still disconsolate, took a small cottage on the 
banks of the Thames, near Twickenham, to which he retired, 
that he might nourish his regrets. The unwearied friendship 


of the poet then prompted his exquisitely beautiful imitation 
of Horace’s Ode to Venusf : — 








* Such discrepancy is there between Law and Poctry, that Pope himself 
cannot pay a compliment to alawyer without giving a specimen of the bathos, 
These two lines were happily ridiculed in Colley Cibber’s parody : — 


« Persuasion tips his tongue whene’er he talks ; 
And he has chambers in the King’s Bench Walks.” 
t Odes, book iv. ode 1. 


LIFE OF LORD MANSFIELD. 341 


« Again? new tumults in my breast ? CHAP. 
Ah, spare me, Venus! let me, let me rest! XXxL 
I am not now, alas! the man, 
As in the gentle reign of my Queen Anne. 
Ah, sound no more thy soft alarms, 
Nor circle sober fifty with thy charms, 
Mother too fierce of dear desires, 
Turn, turn to willing hearts your wanton fires ; 
To number five direct your doves, 
There spread round Murray all your blooming loves ; 
Noble and young, who strikes the heart 
With every sprightly, every decent part; 
Equal the injured to defend, 
To charm the mistress or to fix the friend ; 
He, with a hundred arts refined, 
Shall stretch thy conquests over half the kind. 
To him each rival shall submit, 
Make but his riches equal to his wit. 
Then shall thy form the marble grace, 
Thy Grecian form, and Chloe lend the face ; 
His house, embosom’d in the grove, 
Sacred to social life and social love, 
Shall glitter o’er the pendent green, 
Where Thames reflects the visionary scene: 
Thither the silver sounding lyres 
Shall call the smiling Loves and young Desires ; 
There every Grace and Muse shall throng, 
Exalt the dance, or animate the song; 
There youths and nymphs, in consort gay, 
Shall hail the rising, close the parting day.” 


A.D. 1738. 


The soothing effect of this rivalry of youths and nymphs, Cured by 
graces and muses, smiling loves and young desires, would have re 2 
been very doubtful; but Murray was cured by the return of 
Michaelmas Term, which recalled him to Westminster Hall, 
and by the turmoil of attorneys and solicitors, jurymen and 
witnesses, noisy counsellors and prosing judges. 

Ali his energies were soon after called forth by receiving a Dee. 5. 
brief in a crim. con. cause of much expectation. The lady 42°: 
who was the subject of it, a sister of Dr. Arne the composer, placed at 
possessed exquisite beauty and attractions. She was a re ae 
favourite actress, and the whole town had been lately occu- his speech 
pied with the notable dispute between her and Mrs. Clive =... cauce. 
as to which of them should perform the part of Polly 
Peachum in the Beggar’s Opera. She had been married to 
the worthless son of the famous Colley Cibber: many stories 
were circulated of her gallantries, and from among her many 
lovers Colonel Sloper, the one selected as a defendant in this 
action, had a distinguished name in the fashionable world. 


Murray was only junior counsel for him; but in those days, 
z3 


342 


CHAP. 
XXXI. 


A.D. 1738. 
No truth in 
the vulgar 
story of his 
being sud- 
denly re- 
quired to 
speak on 
his leader 
being 
taken ill, 


REIGN OF GEORGE II. 


when long speeches were unknown, all the counsel were 
permitted to address the jury, and he had a fair chance of 
an opportunity to show off his eloquence. ' 

A story was fabricated, and has been repeated a hundred 
times, that he emerged from obscurity and made his fortune 
on this occasion by ihe accidental illness of his leader. Nay, 
we are circumstantially told that “on Serjeant Eyre’s sudden 
seizure in court, when about to speak for the defendant, the 
duty of the senior devolved on the junior counsel, who at 
first modestly declined it for want of time to study the case, 
and that the judge, to indulge him, adjourned the trial for 
about an hour.”* Not only is this fit of poor Serjeant Eyre 
unnoticed by the contemporary accounts of the trial which 
were printed, but they actually give us his speech to the 
jury, which seems to have been “hot and heavy,” as became 
the coif.t Mr. Murray followed, and was much more lively 
and impressive. In truth, it was a most infamous action, 
and now-a-days, on the maxim “ volenti non fit injuria,” 
the plaintiff would have been nonsuited, for he had connived 
at his own dishonour ; and it was proved that, when Colonel 
Sloper and Mrs. Cibber were in bed together, he had brought 
them a pillow and put it under their heads. The Magazinest 
are rapturous in their praise of Mr. Murray’s performance, 
but give us a very meagre account of it; and my readers, 
making allowance for bad reporting, must not conclude that 
it was feeble from the following extract, which is the most 
favourable I can find: —- 

“ The plaintiff tells his servant that ‘Colonel Sloper is a good- 
natured boy. To this boy he resigns his wife, from this boy he 
takes money to maintain his family, and then he comes to a court 
of justice and to a jury of gentlemen for reparation in damages. 
It devolves on you, gentlemen, to consider the consequences of 
giving damages in a case of this nature. Infinite mischiefs would 
ensue if it should once come to be understood in the world, that 
two artful people, being husband and wife, may lay a snare for 
the affections of an unwary young gentleman, take a sum of money 


* Holliday, p. 35. 


t Legal conundrum : —“ Why is a Serjeant’s speech like a tailor’s goose?” 
A. “ Because it is hot and heavy !” 


+ Reporting law trials in newspapers did not begin till long after, 


LIFE OF LORD MANSFIELD. 


from him, and then come to extort more with the assistance of 
twelve jurymen. I desire to be understood as by no means an 
advocate for the immoralities of my client; but remember, gentle- 
men, this is not a prosecution seeking punishment for the sake of 
the public; the only question here is, whether the plaintiff has 
been injured, and surely he cannot justly represent himself as 
injured if he has not only consented but received a high price for 
that which he does not at all value. However, gentlemen of the 
jury, if it be thought requisite to find a verdict for the plaintiff, 
we have not a denomination of coin small enough to measure the 
damages.” 

The jury found a verdict for the plaintiff, with 102 da- 
mages, said to be “‘a piece of bank paper of the smallest 
value at that period in circulation.” * 

Mr. Murray’s eloquence was the theme of universal applause; 
and, in spite of misrepresentation and exaggeration, there can 
be no doubt that this speech, delivered in common professional 
routine, placed him at the head of the bar. He never coun- 
tenanced the fable of Serjeant EKyre’s fit, and knew well that 
he had reaped the fruit of premeditation and study; yet he 
used to talk of this trial with much complacency, and to say, 
‘Henceforth business poured in upon me from all quarters, 
and from a few hundred pounds a year, I fortunately found 
myself in the receipt of thousands.” 

The most distinguished client who solicited his patronage 
was Sarah, Duchess of Marlborough, who had several im- 
portant suits going on in the Court of Chancery respecting 
the trusts of her husband’s will; and, desirous of stimulating 
his zeal in her favour, she resolyed to make him a liberal 
donation, although not quite so splendid a one as that re- 
ceived from her by his rival Pitt. She sent him a general 
retainer, with a thousand guineas. Of these he returned 
her nine hundred and ninety-five, with an intimation that 
“the professional fee, with a general retainer, could neither 
be less nor more than five guineas.” 

As might be expected, she was a very troublesome client, 
and she used to visit him herself at very unseasonable hours. 

* Holliday, 36.; Selwyn’s Nisi Prius, 10. Lord Kenyon, in Duberley vy. 


Gunning, 4 Term Reports, 654., represents the verdict in Cibber v. Sloper to 
have been for the defendant ; but he was quite mistaken, 


z 4 


Sarah, 
Duchess of 
Marlbo- 
rough, his 
client. 


344 


ViOELATE: 
XXXI. 


AID ahi oo. 


He appears 
at the bar 
of the 
House of 
Commons 
on the peti- 
tion for a 
war with 
Spain, 


REIGN OF GEORGE II. 


On one occasion, when late at night he came home to his 
chambers, he found them almost blocked up by a splendid 
equipage ; footmen and pages, with torches in their hands, 
standing round; and the Duchess seated in his consulting chair. 
Instead of making any apology, she thus addressed him: 
«Young man, if you mean to rise in the world, you must not 
sup out.” 

Another night, when, after the conclusion of a very long 
trial in which he had succeeded, he was indulging in agree- 
able conversation with Pope and Bolingbroke, Sarah again 
called, and, having in vain expected his return till past mid- 
night, went away without seeing him. His clerk, giving 
him an account of this visit next morning, said to him, “I 
could not make out, sir, who she was, for she would not tell 
me her name; but she swore so dreadfully that she must be a 
lady of quality !” 

Mr. Murray’s growing celebrity procured him a retainer at 
the bar of the House of Commons as counsel for the mer- 
chants who, because they were interrupted in their smuggling 
adventures to the Spanish colonies, petitioned for a redress 
of imaginary grievances, and were trying, without any sufti- 
cient ground, to bring about a war between the two countries. 
On this occasion “every resource of oratory was applied to 
exaggerate the insults and cruelties of the Spaniards, and to 
brand as cowardice the minister’s wise and honourable love 
of peace. It was asserted that the prisoners taken from 
English merchant vessels had been not merely plundered of 
their property, but tortured in their persons, immured in 
dungeons, or compelled to work in the Spanish dockyards 
with scanty and loathsome food, their legs cramped with 
irons, and their bodies overrun with vermin.”* To prove 
these outrages, Murray called as witnesses several captives 
and seamen; relying mainly on the famous Captain Jenkins, 
who stated that ‘a Spanish captain had torn off one of his 
ears, bidding him carry it to his King and tell his Majesty 
that if he were present he should be treated in the same 
manner ;” and being asked what were his feelings when he 
found himself in the hands of such barbarians, answered 


* Lord Mahon, 1. 242, 


LIFE OF LORD MANSFIELD. 


(perhaps on the suggestion of the counsel), ‘I recommended 
my soul to God, and my cause to my country.” War was 
soon after proclaimed amidst public rejoicings, while Walpole 
prophesied truly, “They may ring their bells now; before 
long they will be wringing their hands.”* 

Murray, since his altered fortunes, could enter on a matri- 
monial negotiation with entire confidence. He proposed to the 
Lady Elizabeth Finch, a daughter of the Earl of Winchelsea ; 
and on the 20th of November, 1738, he led her to the altar. 
Their union was most auspicious. They had no offspring, but 
they lived together happily for near half a century; and his 
passion for CHLOE was only remembered by him to illustrate 
the maxim which he inculcated, that a first love may be suc- 
ceeded by a second as pure and as ardent.t Lady Mansfield, 
by the exemplary discharge of every domestic, social, and 
religious duty, made his home delightful till the 10th of 
April, 1784, when he resigned her in the hope of being 
speedily reunited to her in a better world. 

The first four years after his marriage must have been 
the happiest portion of his existence. He was in the 
enviable situation of being at the head of the bar, without 
the anxiety or the envy which may be expected to attend 
the possession of office. Hope held out to him the most 
brilliant prospects of advancement, and, as yet, he thought 
there must be supreme felicity in gratified ambition. 

Both parties in the state were eager to enlist him in their 
ranks. At this time there were very few professed Tories, 
and still fewer avowed Jacobites. Politicians struggling for 
power, almost all coming within the general denomination of 
Whigs, were divided into the adherents and the enemies of 
Sir Robert Walpole. Murray warily refused to join either 
the one class or the other. He had been counsel in a Chancery 
cause for the Duke of Newcastle, who, eager to secure the 


* Coxe’s Memoirs of Walpole, i. 579. 618.; Tindal, viii. 372. ; Commons’ 
Journals, March 16. 1738. 

+ Some of Lord Mansfield’s biographers have supposed that the Lady Eliza- 
beth Finch herself was the true Cutor, and that, she remaining true, her family 
relented on the improved prospects of her lover; but, not only from the verses 
of Pope, but from other sources, it is quite certain that Cutoe did wed the rich 
dulness of a Lincolnshire squire, and that the Lady Elizabeth succeeded her in 
the affections of her Strephon, 


345 


CHAP; 
XXXI, 


A.D. 1738 
—1742. 


His mar- 
riage. 


February. 
After the 
fall of Sir 
Robert 
Walpole 
he attaches 
himself to 
the Pel- 
hams, 


REIGN OF GEORGE II. 


rising lawyer as a partisan, wrote the following letter to Lord 
Chancellor Hardwicke : — 

“TI cannot but think myself greatly indebted to Mr. Murray, 
who, from the great pains he has taken in the way of his profession, 
has singly procured the consent of all parties, without which I 
should not have been thoroughly easy. I should beglad to make him 
any proper return ; and as promotions in the law are now stirring, 
might I submit it to your Lordship whether Mr. Murray might 
not be made one of the King’s counsel? His ability nobody will 
doubt, and I will be answerable he shall do nothing unbecoming 
that station, or that shall reflect upon those who shall recommend 
him to it. You know, my dear Lord, the reason I ask this favour 
of you, and for him; and you must therefore know how greatly 
I shall be obliged to you if it can be granted, and that is all I shall 
say upon the occasion.” 

The Duke, however, in his peculiar fashion, annexed 
certain conditions to this favour, which were rejected, and 
Murray continued to lead the bar in a stuff gown till he was 
made Solicitor General. At last the veteran minister, after 
having for twenty years distributed the patronage of the 
Crown, was now so hard pressed that his fall was deemed 
inevitable; but there was no concert among his heterogeneous 
opponents to form a government to succeed him, and there 
would have been no prudence in joining any section of them. 
Murray pretended to be guided by the sentiment of Pope, 
that “the man who may have the good-will of all parties is 
cuilty of folly if he becomes a partisan.” However, when 
the crash was over, and, Pulteney, to the surprise of all man- 
kind, declining to take office, the Duke of Newcastle, Pelham, 
and Hardwicke seemed firmly seated in power, the shrewd 
Scot did not hesitate to declare that he thought they were 
entitled to the support of enlightened statesmen. His own 
father-in-law, the Earl of Winchelsea, had become First Lord 
of the Admiralty,-and was a member of the new Cabinet. 
His friendly opinion of Mr. Murray was made known in the 
proper quarter, and there was a warm desire to take him as 
soon as possible into the service of the Crown. 

But he spurned the notion of any political appointment, 
and there was a difficulty in bringing about a vacancy in the 
office of Attorney or Solicitor General, as neither of the 


LIFE OF LORD MANSFIELD. 


present law officers could be unceremoniously removed, and 
the existing occupants of the chiefships in Westminster Hall 
seemed hale and hearty. In the course of a few months 
Sir John Strange, the Solicitor General, whose health had 
failed him, was induced contentedly to resign, on a promise of 
being made Master of the Rolls. Mr. Murray was installed 
as his successor, and immediately after was returned to the 
House of Commons, in his stead, for Boroughbridge, one of 
the many seats in the gift of the Duke of Newcastle.* 

The very honourable feelings which filled his mind on his 
promotion are well expressed in the following letter from him 
to Mr. Grant, an eminent advocate at the Scotch bar, who 
had lately been deprived of the office of Lord Advocate, but 
was afterwards made a Judge by the title of Lord Preston- 
grange : — 

“ Dear Sir, — Give me leave to acknowledge your very 
obliging letter ; your partiality flatters me, extreamly ; because I 
am persuaded it proceeds from good will; and there is nothing I 
covet so much as the good will of those I value and esteem. The 
office I have accepted came unasked, and recommended by many 
circumstances to make it agreeable, else I cou’d have liked very 
well to continue as I was; my ambition is not so much to aspire 

_to high things, as to act my part, whatever it is, as well as I can. 
In my way of thinking, I cannot condole with you upon the loss 
of that office to which you did honour while you filled it, tho’ I 
was heartily concerned when I heard of it; I cou’d condole with 
those who took it from you; the enjoyment of it cou’d not add 


* At thesame time he was elected a Bencher of Lincoln’s Inn :— 

« At a Council held the 29th day of November, 1742. 

“ Ordered,—That the Hon. William Murray, Esq., His Majesty’s Solicitor 
General, be invited to the Bench of this Society; and that Mr. Attorney General 
and Mr, Browne, two of the Masters of the Bench, are desired to attend him 
with this order, and report his answer to the next Council; and if the said Mr. 
Murray do accept of this invitation, he is, according to the rules of this Society, 
to pay all his arrears and duties to the Treasurer of this Society before he be 
published to the Bench.” 

« At a Council held the 15th day of December, 1742. 

* Upon the Report of Mr. Attorney General, who, with Mr. Browne, was, by 
order of the last Council, desired to attend the Hon. William Murray, Esq., 
His Majesty’s Solicitor General, with an invitation to the Bench, that he, toge- 
ther with Mr. Browne, had attended the said Mr. Murray, who had accepted of 
the said invitation,—it is Ordered, that the said Mr. Murray be called to be a 
Bencher of this Society, and that he be published at the next Exercise in the 
Hall, he having paid all his arrears and duties to this Society.” 

He was Treasurer the following year. 


347 


CITA 
XXXI. 


A.D. 1742. 


November. 
He is made 
Solicitor 
General. 


348 


LG) tsi e?, 
XXXI. 


A.D. 1738 
—1742. 


His private 
life. 


His 
friendly 
letter to 
Booth the 
convey- 
ancer. 


REIGN OF GEORGE II. 


much to your figure or character, the loss of it can take nothing 
from either ; and J am convinced that in making the change no 
part of the motive was personal to you. It is to God and yourself 
that you owe being at the head of your profession, which, in my 
opinion, is the highest object of ambition. ‘This situation no 
power can give or take away. That you may long enjoy it in 
spirits and health is the sincere wish of 
“ Dear sir, 
“« Your most ob: hu: serv*. 
“¢ W. Murray. 

“ Lincoln’s Inn, 18th Dec. 1742.” 

Before we see the new Solicitor tossed about on the stormy 
ocean of politics, on the margin of which he now stood, let us 
try to catch a glimpse of him in private life. He had taken 
a handsome house in Lincoln’s Inn Fields, then the haunt not 
only of prosperous lawyers but of ministers of state.* Here 
he received his professional friends, whom he entertained 
with elegant hospitality and genuine kindness. One of these 
whom he most loved was Mr. Booth, afterwards celebrated 
as a conveyancer, but at this time very much disheartened by 
the small success he met with in the department of the pro- 
fession which he had chosen. The following letter, written 
to cheer and encourage him, shows Murray to have had a 
warmth of heart for which he has not had sufficient credit : — 

“ My dear Friend, —I received yours last night. I cannot 
but applaud the protection you give a sister, whom I know you 
love tenderly; yet it seems a little rash to carry your beneficence 
so far as to dry up the source of all future generosity; and I am 
sure it is greatly against the interest of every one, who has the 
least dependence upon you, that you should do anything which 
makes it all difficult for you to persevere in a way where you 
must at last succeed. Of this I have no doubt ; and, therefore, it 
is as superfluous to add my advice for your coming to town imme- 
diately, as it would be to tell you that I omit no opportunity of 
mentioning your name, and promoting your interest. You can- 
not fail but by staying in the country, and suffering people who 
have not half your merit to step in before you. With regard to 
everything you say of Mr. Pigot, we will talk more at large here- 
after ; I as little think he will bring you into his business while 


* The Duke of Neweastle’s house was at the north-west corner, next to Queen 
Street. 


LIFE OF LORD MANSFIELD. 


he lives as that you can be kept out of a great part of it when he 
dies. Jam at present consulted upon a devise-settlement of his, 
whereby a great estate is left toa noble Roman Catholic family— 
which I am very clear is good for nothing. Can you contrive a 
way by which an estate may be left to a Papist? Though I have 
no more doubt of the case put to me than whether the sun shines 
at noon, I told the gentleman who consulted me I would willingly 
stay to talk with a Roman Catholic conveyancer, whom I expected 
soon in town, and named you to him. 

“Town I am desirous you should come to town; and be as- 
sured the best service you can do your friends is to put yourself in 
a way to serve them effectually. As to any present occasions you 
have, you know where to command when I have a shilling. Mil 
mihi rescribas, attamen ipse veni. Tam, I do assure you, with 
great cordiality and esteem, 

* Dear Booth, 
“ Your affectionate friend and faithful servant, 
“ W. Murray.” 

To show his amiable disposition and recollection of favours 
received, I may here introduce two letters written by him to 
Lord Milton, a Judge of the Court of Session in Scotland, 
from whom he had received much kindness when a boy : — 


“My dear Lord, — To come at once to the business of my 
letter, and without a preface. I have lately been engaged before 
my Lord Chancellor in a question for the Dean and Chapter of 
Christ Church College in Oxford, of which your Lordship knows 
Iwas, till very lately, a member. It was a point about which they 
were very anxious; and I happened to speak in it so much to 
their satisfaction that they have thought themselves obliged to 
make a particular acknowledgment of it, and the manner in which 
they have done it is very well judged; they have offered me the 
nomination of a student, who is there the same as a fellow of 
another college. There go four evry year from Westminster 
School, and the other vacancies are filled by the Dean and Canons. 
The thing is extreamly creditable ; and they may be upon a foot 
with any gentleman of the place at a much less expence. From 
the College they have chambers commons and about 20/. a year, 
which encreases according to their standing. There are other 
advantages afterwards to those who reside there and take orders. 

“TI did not refuse the offer made me of this nomination; and 
immediately resolved to propose it to my Lady Milton and you. 
My nephews are too young; and besides, I intend, if they are 


349 


CHAP: 
XXXII. 


A.D. 1738 
—1742. 


Letters 
from him 
to Lord 
Milton, the 
Scotch 
Judge. 


350 


CHAP. 
XXXI. 


A.n. 1738 
—1742. 


REIGN CF GEORGE If. 


educated in this country, that they shall go thro’ Westminster 
College. I find your Lordship has a son at Winchester School 
about sixteen years of age, but I fear he is your oldest son, and 
therefore it will not be of the same service to him that it wou’d be 
to a younger son. Iam told that the next you do not intend for a 
learned profession, but for the army. However, it may be worth 
your while to consider whether you will accept of it for your eldest 
son; if you intend to breed him to a profession in this country, 
and to give him an university education. If you propose to send 
him to the University here fora year or two only, and then abroad 
to study the civil law, and travel, and so home, this certainly 
don’t deserve to be thought of, and is by no means advisable; and 
I suspect this so much to be your plan, and it is a very reason- 
able one, that when I found upon enquiry you had no younger son 
whom this would suit, I doubted whether I shou’d propose this to 
you at all; but a friend of yours, from whom I learnt the state of 
your family, desired I wou’d, that you might judge for yourself. 
There is no haste in determining, because it will be a considerable 
time before the place falls. I desire my compliments to my Lady. 
I need not tell you the pleasure it wou’d give me to be serviceable 
to your family in any respect. This is the first thing in my power 
that has offered, and, whether it suits or not, [ have the pleasure 
of giving this small mark that I am,-my Lord, 
“ Your Lop’s most obliged and obedt. hu: serv* 

“ W. Murray. 

“ Lincoln’s Inn, 2d Feb.” (1737-8.) 


“ My dear Lord,—'The accounts I have lately heard of your 
Lops health have givn me great pain; and I have often been 
tempted to write to Lady Milton to enquire after you, but I was 
afraid it might be too tender a subject to apply to her upon. I 
called yesterday upon L4 Isla to talk with him about your son’s 
education. Iam glad to find he thinks the offer which fortune 
put it in my power to make you last year is so advantagious to 
him as not to leave room for deliberation ; tho’ he has some pre- 
judices, and perhaps too well founded, to many things in our Uni- 
versitys; I know the good and the bad of them very well; and 
upon the whole am very clear that you cannot dispose of him in 
any other way so well, and it will interfere with no scheme which 
you can have hereafter. Jam too much pressed at present to give 
you my reasons, and I only write this to tell you that my L4 and 
I agree he shou’d go to Christ Church in Oxford. The time when, 
and everything else in relation to fixing him there, I will take the 


LIFE OF LORD MANSFIELD. 


trouble of directing, and likewise recommend him to proper com- 
pany, and put him under the best care I can. I desire my com- 
pliments to my lady, and am with great truth, 
“ Your Lop’s most ob: hu: servt 
“ W. Murray. 

‘* Lincoln’s Inn, 11 Jan. 1738-9. 

“ I don’t at all know what progress he has made at school, but he 
seems to me a very pretty youth.” 


The new Solicitor General and M.P. found a mortifying 
difficulty in keeping up the intercourse he wished with his 
literary associates; and Pope, when publishing a new edition 
of the Duncrap, introduced him (although with respect and 
tenderness) among those who from their classical attainments 
and their genius might have gained high intellectual dis- 
tinction, but who had sunk into lawyers and politicians: — 


“ We ply the memory, we load the brain, 
Bind rebel wit, and double chain on chain ; 
Confine the thought to exercise the breath, 
And keep them in the pale of words till death. 
Whate’er the talents, or howe’er design’d, 
We hang one jingling padlock on the mind: 
A poet the first day he dips his quill; 
And what the last ?—a very poet still. 
Pity ! the charm works only in our wall, 
Lost — too soon lost —in yonder house or hall. 
There truant Wyndham ev’ry muse gave o’er ; 
There Talbot sank, and was a wit no more ! 
How sweet an Ovid, Murray, was our boast / * 
How many Martials were in Pulteney lost!” 


Notwithstanding such lamentations, the intimacy between 
the two illustrious friends continued without abatement. 
Pope was often in the habit of spending his winter evenings 
in the library of Murray’s house in Lincoln’s Inn Fields. 

It is related that on one occasion the rising lawyer, being 
called away to a consultation, put into the poet’s hand a 
volume of Latin Epitaphs, lately published by Dr. Friend, 
head master of Westminster, saying that they had been much 
read and admired. Pope, who, like other great men, felt 
unnecessary jealousy of a supposed rival, was alarmed lest his 
own fame in epitaph-writing, on which he particularly valued 


* From this compliment, I suspect that the beauty of Cutor or some other 
charmer had been celebrated by Murray in verses which haye not reached us. 

It is rather surprising that Murray’s name is not introduced with Wyndham’s, 
St. John’s, and Marchmont’s, in the verses on Pope’s Grotto at Twickenham ; 
but perhaps it did not aptly fall into any couplet. On such considerations do 
the praises and censures bestowed by poets sometimes depend. 


351 


CHAP. 
XXXI. 


A.D. 1738 
—1742, 


Regret of 
Pope that 
Murray had 
abandoned 
the Muses 
for law and 
politics. 


Verses 
written by 
Pope in 
Murray’s 


chambers. 


352 


CHAP. 
XXXI. 


A.D. 1738 


—1742. 


Their last 
meeting. 


REIGN OF GEORGE II. 


himself, should be dimmed; and on Murray’s return showed 


him the following epigram : — 


“ Friend ! for your epitaphs I’m grieved: 
Where still so much is said, 
One half will never be believed, 
The other never read.” 


The old Westminster, although a little hurt that his pre- 
ceptor should be so slighted, acknowledged that the lines 
were smart, and, with permission, took a copy of them. But 
next night, Pope having produced a Latin epitaph of his own 
composition, which he maintained to be equal to any of 
Friend’s, Murray, detecting a false quantity in it, threw it 
in the fire, saying that “the finest of English poets, and he 
who had most embellished his own language, ought to write 
inno other.” The distinction conferred ona young lawyer by 
such an intimacy is more to be envied than Chief Justiceships 
and Earldoms. 

Pope, a few days before his death, when much debilitated 
in body, was, at his own desire, carried from Twickenham 
to dine with Murray in Lincoln’s Inn Fields. ‘The only 
other guests invited were Bolingbroke and Warburton. O 
for a Boswell to have given us their conversation! But, 
perhaps, it is better that their confidence has not been be- 
trayed, for, amidst the gratification arising from their lively 
sallies, we might have found Bolingbroke scoffing at religion, 
— Warburton irreverently anathematising all who differed 
with him on questions of criticism, — Pope vindicating him- 
self from the charge of Roman Catholic bigotry by denying 
Divine revelation, — and Murray softening the misconduct of 
those who had been, or were, in the service of the Pretender, 
by admitting that he himself had had a strong hankering 
after the doctrine of the divine right of kings. 

Some expected that Murray, having been treated by Pope 
as a son, would have been named his heir; but he was himself 
amply satisfied with the proof of the continued regard he ex- 
perienced in being appointed his executor, and being legatee of 
a marble bust of Homer by Bernini, and another of Sir Isaac 
Newton by Guelfi. He had received before, what he valued 
beyond all his possessions, a portrait of Betterton, the actor, 
drawn by Pope himself, who, it is well known, thought he 
was born to excel by the pencil as well as by the pen. 


LIFE OF LORD MANSFIELD. 


CHAPTER XXXII. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS 
MADE ATTORNEY GENERAL. 


Ir has cften happened that a lawyer, with great reputation 
at the bar, has lamentably failed on coming into the House 
of Commons; but Murray, as a parliamentary debater, was 
still more applauded than when pleading as an advocate. 
Now he reaped the reward of long years of study, by which 
he cultivated and perfected the high qualifications for oratory 
which he had received from nature. The first time he opened 
his mouth in the House of Commons he seems to haye had 
the most brilliant success ; and, during the fourteen years he 
remained a member of that assembly, as often as he mixed 
in the debate he was listened to with favour. 

His chief antagonist was William Pitt, who had entered 
parliament two years before him, as member for Old 
Sarum, and had made himself most formidable by an uncom- 
promising hostility to all the measures of the Government, 
and by an energy of declamation and a power of invective 
hitherto unexampled in the annals of English eloquence. 
The great patriot was already compared to a mighty torrent 
which, with irresistible fury, carries away before it every 
obstacle that it encounters, spreading consternation and ruin 
through the country which it overwhelms. 

Murray, unless on some very rare occasions, was found to 
be his match. The mellifluous tones,—the conciliatory 
manner, — the elegant action, — the lucid reasoning, — the 
varied stores of knowledge, — the polished diction, — the alter- 
nate appeals to the understanding and the affections, — the 
constant self-control, — which distinguished the new aspirant, 
divided the suffrages of the public. Even the worshippers of 
Pitt admitted that Murray was justly entitled to the com- 

VOL. II. AA 


353 


CHAP. 

XXXII. 
—_—_——- 
A.D. 1742, 
1743. 
Murray’s 
brilliant 
success in 
the House 
of Com- 
mons, 


Pitt his 
rival. 


354 


CHAP. 
XXXII. 





A.D. 1743. 


Dee. 6. 


Murray’s 
speech on 
the em- 
ployment 
of Hano- 
verian 
troops. 


REIGN OF GEORGE II. 


plimentary quotation from Denham, which his friends applied 
to him, — 


« Though deep, yet clear; though gentle, yet not dull; 
Strong, without rage; without o’erflowing, full.” * 


The subject of agitation then was the taking of 16,000 
Hanoverian troops into British pay. Pitt, heading the 
discontented Whigs, and backed by the Tories and Jacobites, 
denounced this act as illegal, unconstitutional, a sacrifice of 
British to Electoral interests, and a prelude to the introduc- 
tion of despotism into this country, — and he brought forward 
a motion for an address to the Crown, praying that these 
troops should be dismissed. 

The duty of the Solicitor General of that day in the 
House of Commons was not confined to answering a legal 
question, or introducing a bill to reform the practice of the 
courts, The brunt of this debate chiefly fell upon him. From 
defective reporting, we can form a very inadequate notion of 
his speech; but I will give a few extracts from it. Thus 
he began : — 


“ Sir, the motion now under our consideration is of such a 
new and extraordinary nature, and is such a direct attack on the 
just prerogative of the Crown, that I should think myself very 
little deserving of the honour which his Majesty has been pleased 
to confer upon me if I did not rise to oppose it. There are certain 
powers vested in the King, as there are certain privileges belonging 
to the people, and an infringement of either would lead to the 
overthrow of our happy constitution. As the guardians of the 
liberties of the people, we are bound to respect the royal prero- 
gative. But if there be anything certain it is this, —that to the 
King alone it belongs not only to declare war, but to determine 
how the war, when declared, shall be carried on. He is to direct 
what forces are to be raised; when armies are to march; when 
squadrons are to sail; when his commanders are to act, and when 
they are to keep upon the defensive. If this motion were carried, 
I should expect to see a venerable member moving an address 
that a general engagement shall be immediately ordered in Flanders, 
although the mover has never been out of England, ‘nor the di- 

* Perhaps the reader may be more amused by the description of his eloquence 
by his principal biographer,— “he was perspicuous without constraint, mellifluous 
without exuberance, and convincing without ostentation” (Holliday, p. 54.),— 


although one does not see at first sight how the vice of which he is acquitted is 
an excess of the good quality for which he is praised. 


LIFE OF LORD MANSFIELD. 


7 


vision of a battle knows more than a spinster.” He then takes an 
enlarged view of the state of Europe, and particularly of the affairs 
of the Queen of Hungary; and, having shown that the most 
effectual mode of assisting her, and of baffling the attempts of 
France, was to send an army into Flanders, thus continues : —“ On 
every side the most happy effects have been produced by the 
method his Majesty has chosen for assisting the Queen of Hungary. 
I hope it will not be said that we ought to assist her with our own 
troops alone. To raise by recruiting at home the army which 
would be necessary, must be injurious to our industry and in- 
jurious to our constitution. We must therefore have foreign troops 
in our pay, and where shall we find any to be preferred to the 
Hanoverians ?” He next goes on to vindicate his Majesty’s coun- 
trymen from the false charges of cowardice and insubordination, 
which, to spite him, were circulated against them; and to show 
that no improper partiality had ever been shown for them in pre- 
ference to British troops. Thus he concludes :—“ I will not say, 
sir, that upon no occasion would this House interfere with its 
advice as to the exercise of the prerogatives of the Crown. If 
wicked or incapable ministers were bringing disgrace on the 
British arms, degrading the national honour, and hazarding the 
national safety, we might be called upon to advise the King to 
change his measures and his advisers. But our allies have been 
effectually protected, and the interests of England, in every part 
of the world, have been vindicated. It is insinuated, indeed, that 
all our measures are secretly calculated for the benefit of the 
Electorate of Hanover. This is an insinuation of a most dangerous 
nature, and it ought not to be resorted to for mere party purposes, 
because it tends not only to wean the affections of the people from 
the sovereign on the throne, but from the Protestant succession in 
the Hanover line, and to bring about a counter-revolution which 
would be fatal to religion and liberty. Whether the republican 
faction, or Jacobitish faction, which are now united, shall prevail 
when the split comes, destruction alike awaits constitutional free- 
dom. What ground is for the charge? I do not pretend to 
be in the secrets of the Cabinet, and I am unable to dive into the 
hidden recesses of the human mind to analyse the true motives of 
action; but, when the measures of the Government are wisely 
calculated to promote the dignity and prosperity of England, and 
have actually produced the happy results which might have ,been 
expected from them, why should you say that their hidden and 
sole object is to enrich Hanover and to add a few patches to its 
territory ?” 
AA 2 


355 


,CHAPFS 
XXXII. 


A.D. 1743. 


356 


CHAE. 
XXXII. 


A.D. 1743, 
1744. 


Murray 
the prop of 
the Admi- 
nistration 
in the 
House of 
Commons. 


REIGN OF GEORGE Ii. 


The motion was negatived by a majority of 231 to 181, 
and Murray became a special favourite with George IL., 
who highly valued his services, — although he sometimes be- 
lieved him to be a convert from Jacobitism, and sometimes 
suspected his sincerity. * 

The office of Attorney General was held by Sir Dudley 
Ryder, a sensible man and a good lawyer, but unfit for any- 
thing beyond the limits of professional duty ; while Mr. So- 
licitor General Murray might henceforth be considered the 
Government leader in the House of Commons. For this 
office he had the very convenient privilege of professing, 
when it suited his purpose, entire ignorance of ministerial 
secrets. Without being formally a member of the Cabinet, 
it is quite clear that he was a party to its most important 
deliberations and decisions. Yet he would thus begin a 
speech on the policy of entering into a treaty with a con- 
tinental state to prosecute the war: — “ The post in which 
I have the honour to serve his Majesty has no concern with 
foreign affairs; and as I am not so unreasonable as to expect, 
much less desire, that ministers should communicate to me 
those secrets which the duty of their office requires them to 
conceal, I can know nothing of foreign affairs beyond what I 
learn from the public gazettes or papers laid before this 
House and accessible to every member. I know enough, 
nevertheless, to enable me confidently to oppose this motion, 
and easily to show its inexpediency.” He then took a 
masterly view of the diplomatic relations of this country with 
the different courts of Europe, speaking hypothetically where 
direct assertion was incommodious. ¢ 

Nay, the Government actually depended upon him for 
vindicating the manner in which the war was conducted by 
England and her allies, and for meeting such questions as 
whether the allied powers could best make an impression on 
France by mustering their forces in Flanders or on the 
Rhine. t But these discussions, which, while they were 
going on, were declared, and perhaps believed, to be the 


‘most important which had ever occurred in the annals of 


* 13 Parl. Hist. 143. 246—274, 
t Ibid. 143. 246. 384. 407. t Ibid, 396. 


LIFE OF LORD MANSFIELD. 


Great Britain, led to no memorable result, and have now 
lost all their interest. 

The connection between England and the Electorate of 
Hanover, which was the great topic of patriotic declamation 
and ground of popular discontent, has fortunately for ever 
ceased by the auspicious operation of the law of descent. 
The supposed grievances arising from this connection were 
powerfully urged by Pitt and Littleton, who at last actually 
brought forward a resolution ‘‘ that no prince holding foreign 
dominions should be qualified to fill the throne of Great 
Britain ; ” intimating that Hanover might be transferred to a 
younger branch of the House of Brunswick, — if the King, 
from his extreme and notorious partiality for it, should not 
choose it for himself. 

Murray, in answer, dwelt on the impolicy of proposing 
a measure which we had no means of carrying; for if it met 
the approbation of the Parliament of England, it might be 
rejected by the Diet of the Germanic Empire. He conjured 
all lovers of constitutional freedom to rest satisfied with the 
Act of Settlement, which contemplated the possession of 
foreign dominions by the prince called to the British throne, 
and, recognising this arrangement, anxiously and effectually 
guarded against all the inconveniences which it might by 
possibility occasion. He then tried to show that the com- 
plaints made on this subject by Tory fox-hunters and dis- 
contented aspirants to place, were to be ascribed to prejudice 
or calumny. Pitt thus began his reply : —“ Not all the so- 
phistry of the honourable and learned gentleman shall make 
me recede from the true point in debate, which is not at all 
affected by any one of his arguments.”* But we shall find 
passages of arms between these champions more worthy cf 
our regard. 

We approach the rebellion of 1745, which ever must be 
interesting to the inhabitants of this island. An event had 
very nearly taken place which would have entirely changed 
our destiny, and might have had a material influence upon 
the history of Europe — the restoration of the Stuarts to the 
throne of their ancestors. 


* 13 Parl. Hist. 467—473. 
AAS 


357 


CHAP. 
XXXII. 


A.p. 1744, 


Rebellion 
of 1745. 


358 


CHAP, 
XXXII. 





A.v. 1745. 


February. 
Suspension 
of the 
Habeas 
Corpus 
Act. 


REIGN OF GEORGE Ii. 


Murray must have viewed the struggle with divided feel- 
ings. He had cast in his lot with the new dynasty; but his 
second brother, whom he dearly loved, had been twenty 
years in the service of the Pretender, had been created by 
him Earl of Dunbar, and was supposed to be his destined 
prime minister. Whether or not Mr. Solicitor himself had 
ever drunk on his knees to “the King over the water,” all 
his early associations must have led him to doubt the title of 
the reigning family ; and, if the will of the people were to 
prevail, he saw the church and landed aristocracy in favour 
of a restoration, while the middle and lower orders testified 
perfect indifference as to the success of the old dynasty or 
the new. * 

Whichever way he might be drawn by his inclination, he 
was governed by a sense of duty; and, remembering the 
oaths he had sworn, he strictly preserved his allegiance to 
King George, and used his best endeavours to frustrate the 
hopes of the Jacobites. 

A message being brought down from the King, announcing 
the meditated attempt by Prince Charles Edward, the Soli- 
citor Genenal zealously supported the bill for suspending the 
Habeas Corpus Act, against George Grenville, who, though 
a sober-minded man, and well affected to the Protestant suc- 
cession, was so far blinded by faction as to assert that “the 
threatened invasion was a mere contrivance of ministers to. 
prolong their own rule.” Murray made a very temperate and 
effective speech, showing that, since the Revolution, the same 
power had been asked by successive governments nine times 
over, and that on none of those occasions did there exist such © 
a strong necessity for empowering the government to arrest 
and detain those who were well known to be guilty of trea- 
son, although there might not be Jegal evidence upon which 
they could be brought to an immediate trial. + 

It would have been curious to read a diary sincerely 
written by him, from the time when news arrived of the 
landing of the young Pretender in Moidart till news arrived 
of his flight after the battle of Culloden. Murray’s corre- 


* According to old Horace Walpole, they cried “ Fight dog, fight bear.” 
+ 13 Parl. Hist. 671. 


LIFE OF LORD MANSFIELD. 


spondence with his mother during the same period would 
be still more curious ; for the good old lady, who never in all 
her life prayed for King George, made no secret of her good 
wishes for King James, and was said actually to have assisted 
the rebels with provisions as they passed through Perth. 
But no such stores of private information are open to us. 
Even in public records Murray’s name is not again men- 
tioned till the Georgian cause had completely triumphed ; 
and the ‘‘ rebel Lords,”—who, if they had succeeded in their 
enterprise, being made Dukes and Knights of the Garter, 
would have been celebrated for their loyalty in all succeeding 
ages, — were to be prosecuted for joining in an “ unnatural 
rebellion ; ” were to receive sentence to be hanged, beheaded, 
and quartered ; and were to die with the reflection that their 
estates and titles were forfeited, and that their children were 
reduced to beggary and disgrace. 

It must have been a painful task for Murray to take an 
active part in these prosecutions, for the prisoners were con- 
nected with his family by blood or alliance; but he did his 
duty with firmness and moderation, neither seeking to blunt 
the edge of the law out of favour to the accused, nor to make 
it cut with undue sharpness that he might avoid the charge 
of partiality. 

Lords Kilmarnock, Cromarty, and Balmerino being tried 
before the House of Peers and a Lord High Steward, on 
bills of indictment against them found by an English grand 
jury for overt acts of treason committed in the siege of 
Carlisle, he appeared against them as one of the counsel for 
the Crown. With the first two he had little trouble, for 
they both pleaded GuiLTy and prayed for mercy. Lord 
Balmerino pleaded Nor Guiry, and relied upon two objec- 
tions: —1. “That in the indictment he was designated ‘ John, 
Lord Balmerino, late of the city of Carlisle, in the county 
of Cumberland,’ whereas his true title was ‘ John, Lord Bal- 
merino, of Balmerino, in the county of Fife;’” and 2. “ That 
he was indicted for the taking of his Majesty’s city of Carlisle 
on the 11th of November, in the year of our Lord 1745; 
whereas he could prove that during the whole of that day he 
was at least twenty miles off, and the city of Carlisle did not 


AA 4 


359 


CHAP. 
XXXII, 


A.D. 1746. 


Murray 
prosecutes 
the rebel 
Lords. 


Trial of 
Lord Bal- 
merino. 


360 


CHAP. 
XXXII. 


A.D. 1746. 


REIGN OF GEORGE II. 


surrender till two days after.” Lloyd and Skinner, King’s 
Serjeants, and Ryder, the Attorney General, argued at 
great length against these objections, showing that the words 
“Jate of Carlisle” did not mean to give the prisoner’s title of 
dignity, but were only to satisfy a form of law, as denoting 
the place in which he had been; and that, by the rules of 
criminal procedure in England, though very strict upon some 
points, the offence might be alleged to have been committed 
on one day and proved by the evidence to have been com- 
mitted on any other. The objections being still seemingly 
relied upon, the Solicitor General rose in his turn; but no 
sooner had he uttered the introductory words “My Lords,” 
than Lord Balmerino, interposing, observed that ‘*he was 
satisfied,” and asked their Lordships’ pardon for taking up so 
much of their time: — 

Solicitor General: “ My Lords, I was going to have said I did 
not apprehend it necessary for me to speak from any difficulty in 
the objections ; but as the answer to them depended net on natural 
but on legal reasoning, and established forms, I would, for his 
satisfaction, as he has not the assistance of counsel, have said a 
word or two, not merely to prove the rules we contend for to be 
settled by the uniform authority of all our books and many ad- 
judged cases, but to have explained why they have been so settled, 
that the prisoner may be described in conformity to the statute of 
additions, as late of any place where he has recently been, although 
he is not domiciled there; and that the treason must be laid in the 
indictment to have been committed on a particular day, although 
proof of its having been committed on another day is sufficient. 
As he has declared himself satisfied, there is no occasion to say 
more.” 

Mr. Solicitor’s intentions were praiseworthy; but it was 
rather lucky for him that he was released from the task 
he had undertaken, as these rules of law, however well esta- 
blished, certainly are very absurd and inexplicable; and he 
himself used to laugh at the ridiculous length to which law- 
yers were in the habit of carrying Coke’s favourite maxim, 
*«* Lex plus laudatur, quando ratione probatur.” 

The fate of these noblemen excited deep commiseration, 
notwithstanding the admission which all who reasoned coolly 
were obliged to make, that, for the stability of government 


LIFE OF LORD MANSFIELD. 


and the peace of society, unsuccessful rebellion must be 
treated as a capital crime; and when Balmerino, on the 
scaffold, as a response to the prayer “God bless King 
George!” exclaimed “God bless King James!” he was 
regarded with reverence as a martyr. 

In the next prosecution in which Murray was engaged, 
whatever private compunction he might have felt, he had not 
to encounter any merciful prejudices, and he was only an 
instrument in directing public vengeance against a man who, 
after a long career of treachery and rapine, wished to save 
the miserable remnant of his days by the sacrifice of his 
own son: — 


“ But Lovat’s fate exultingly we view ; 
True to no king, to no religion true: 
No Tory pities, thinking what he was ; 
No Whig compassions, for he left the cause : 
The brave regret not, for he was not brave ; 
The honest mourn not, knowing him a knave.”, 


In this case Murray appeared not as a law officer of the 
Crown, but as a member of the House of Commons. The 
wily old chieftain, although, when he thought Prince Charles 
was about to succeed, he ordered his son and his clan to join 
his standard, had himself continued shut up in his castle in 
Inverness-shire. Therefore he could not be proceeded against 
by the presentment of an English grand jury; and, as the 
law then stood, he could only be brought to trial by impeach- 
ment. The Solicitor General was appointed one of the ma~ 
nagers to conduct the prosecution at the bar of the House of 
Lords in the name of all the Commons of Great Britain, and 
it was allowed on all hands that he performed this delicate 
duty with ability and good taste. 

On the sixth day of the trial, being called upon to reply, 
he began by alluding to the disadvantage under which the 
octogenarian Peer seemed to labour from being obliged to 
rely upon his own advocacy ; but said, — 

‘** Under the peculiar circumstances of this case, the assignment 
of counsel to the prisoner would rather have aided the prosecution. 
I speak it feelingly ; I would rather have been opposed to the 
ablest advocate than do what is now required of me as a faithful 
representative of the people. I am persuaded, my Lords, that 
compassion, inseparable from noble minds, has been ingenious to 


361 


“CHAP. 
XXXII, 


A; De 1 747 


Trial of 
Lord 
Lovat. 


March. 


362 


CHAP. 
XXXII. 


AeeolTAts 


REIGN OF GEORGE II. 


suggest to you doubts and objections in favour of one standing in 
that place, who certainly labours under some infirmities, and is 
allowed to defend himself by no other tongue than his own. If 
scruples have arisen in the minds of your Lordships, they will gain 
strength from that consideration, and the honest prejudice in his 
favour may be of more service than the most brilliant eloquence, 
But what can avail against acts of treason so irrefragably proved ? 
against the confessions and the boasts of the prisoner himself when 
he thought that the cause in which he had engaged was to be 
triumphant ?” 

Mr. Solicitor then in a most lucid manner analysed the 
charges against the prisoner, and the proofs by which they 
were substantiated, — abstaining from all violence of declama- 
tion, but giving full effect to the salient points of the case, 
and, in a seemingly simple narration of facts, making the 
prisoner’s duplicity and violence rouse a strong spirit of in- 
dignation in the breast of the hearers. He thus delicately 
touched upon the insinuation that the march of the Frasers 
with the Pretender was to be ascribed solely to the * Master 
of Lovat :” — 

“ He laments the absence of his witnesses ; but there is no calling 
witnesses without facts; there is no making a defence without 
innocence; there is no answering evidence which is true. I will 
do him the justice to believe that, if he could with truth, he would 
not now throw the whole blame upon the ‘ stiff-necked, headstrong 
disobedience of his son. ‘That unhappy boy is already attainted, 
and is now actually in custody. ‘Though he might have been 
made the scape-goat if he were out of reach, yet, in his present 
situation, I am sure the noble lord would not seek to save his own 
life by representing his son as the real criminal.” 

At the conclusion of this speech, Lord Talbot, the son of 
Lord Chancellor Talbot, said, “ My Lords, the abilities of 
the learned manager, who just now spoke, never appeared 
with greater splendour than at this very hour, when his can- 
dour and humanity have been so conspicuous that I hope one 
day to see him add lustre to the first civil employment in this 
kingdom.” 

The House then adjourned for a few minutes, that the 
Peers might take some refreshment. Lord Lovat seized this 
opportunity of introducing himself to the Solicitor General, 


LIFE OF LORD MANSFIELD. 


who stood near him at the bar; and, having complimented him 
on his able speech, added — “ But I do not know what the 
good lady your mother will say to it, for she was very kind 
to my clan as we marched through Perth to join the Pre- 
tender.” * 

The House being resumed, the prisoner made a very irre- 
gular proposal, that the trial should then be postponed to 
enable him to bring witnesses from Scotland, —but this was 
strenuously opposed by the Solicitor General and rejected. 
All the Peers present joined in a unanimous verdict of 
GUILTY. 

When the prisoner was asked if he could show any cause 
why sentence of death should not be passed upon him, he 
said — 

“ My Lords,—I am very sorry I gave your Lordships so much 
trouble in my trial, and I give you a million of thanks for your 
being so good in your patience and attendance while it lasted. I 
thought myself much loaded by one Mr. Murray t, who, your Lord- 
ships know, was the bitterest witness there was against me. I have 
since suffered by another Mr. Murray, who, I must say with 
pleasure, is an honour to his country, and whose eloquence and 
learning are much beyond what is to be expressed by an ignorant 
man like me. I heard him with pleasure, though it was against 
me. I have the honour to be his relation, though perhaps he 
neither knows it nor values it. I wish that his being born in the 
north may not hinder him from the preferment that his merit 
entitles him to. Till that gentleman spoke, your Lordships were 


* Horace Walpole most grossly misrepresents this anecdote, by transferring 
it to the trial of Lord Balmerino, and by supposing that the Solicitor General, 
who had excited suspicion of his loyalty by his courtesy to all the rebels, had 
brutally insulted them. ‘“ While the Lords were withdrawn, the Solicitor 
General Murray (brother of the Pretender’s minister) officiously and insolently 
went up to Lord Balmerino and asked him ‘how he could give the Lords so 
much trouble?’ Balmerino asked the by-standers who this person was? and 
being told, he said ‘ Oh, Mr. Murray, I am extremely glad to see you; I have 
been with several of your relations; the good lady, your mother, was of great 
use to us at Perth.”— Letter to Sir H. Mann. 

Lovat’s tone of jocularity was preserved during the whole course of the trial, 
Old Sir Edward Fawkener, who had recently married a girl from a boarding 
school, having proved, in answer to some questions from the Solicitor General, 
that the prisoner had confessed the part he had taken in the rebellion, he ex- 
claimed, “ I have nothing to ask by way of cross-examination ;— only my ser- 
vice to Sir Edward, and I wisH IM Joy oF HIS YOUNG BRIDE.” 

t+ Murray of Broughton, who had been Secretary to the Pretender, and turned 
king’s-evidence. 


363 


CHAP. 
XXXII. 


A.D. 1747. 


Lord 
Lovat’s 
compli. 
ment to 
Mr. Mur- 


ray. 


364 


CHAP: 
XXXIT. 


A.D. 1747. 


Libels 
upon him 
indiscreetly 
answered. 


REIGN OF GEORGE II. 


inclined to grant my earnest request, and allow me further time 
to bring up witnesses to prove my innocence ; but, it seems, that 
has been overruled. All now that I have to say is a little in 
vindication of my own character.” 

Having spoken at great length to justify himself from the 
charges of dishonourable conduct brought against him, he 
concluded with the following unexpected and good-humoured 
observation: “I beg your Lordships pardon for this long and 
rude discourse. I had great need of my cousin Murray’s 
eloquence for half an hour, and then it would have been more 
agreeable.” 

The old Peer, though really very worthless, acted his part 
so well at the final close of his career, as almost to make us 
forget his crimes, and to persuade us that he was a true pa- 
triot. In the night before his execution, after expressing 
deep abhorrence of Murray of Broughton, the Pretender’s 
secretary, who had turned king’s evidence, he again spoke 
kindly of his cousin William Murray,—saying, “ Mr. Solicitor 
is a great man, and he will meet with high promotion ¢f he 
is not too far north.” Next morning he laid his head upon 
the block, exclaiming, “Dulce et decorum est pro patria 
mori.” * 

After these state trials were over, a period of internal 
tranquillity followed; and Murray, while he remained at the 
bar, had no opportunity of increasing his forensic reputation. 
He was easily the first counsel in the Court of Chancery ; 
but in those days Equity proceedings attracted no degree of 
public notice. There were levelled against him various 
scurrilous articles in the newspapers, written by disappointed 
and envious rivals, representing him as an intruder in Eng- 
land, and containing many illiberal reflections on his native 
country. In his defence a pamphlet was published, entitled 
‘THe THISTLE,” with the motto “ NEMO ME IMPUNE 
LACEssiT.” ‘This was imputed to himself, but must have been 
written by some very indiscreet friend, as may be seen from 
the following quotation on the state of the English bar: — 

“ Tad it not been for the few Scotch there, particularly two 
gentlemen of that nation [Mr, Murray and Mr. Hume Campbell], 


* 18 St. Tr. 530—863. 


LIFE OF LORD MANSFIELD. 


who support oratory as far as the stated jargon and limited pedantry 
of the bar will permit, standers-by would be puzzled to know what 
was intended by the pleadings there. But these gentlemen, no 
less conspicuous for knowledge and virtue than for politeness of 
manners and a noble extraction, have gone great lengths the few 
years they have honoured the bar with their attendance, not only 
to have reformed its language, but to instruct their fellow-barristers 
in the methods, forms, and connections of an argument, of which 
the English generally are most shamefully destitute. Even the 
furred nodders on the bench have benefited by listening to the 
orderly and nervous discourses of these young Scottish pleaders. 
Yet are they become the envy of both Bench and Bar; of the 
latter, because they outshine all that fili it; and of the former, 
because they are independent, and do daily instruct those who 
sit upon it. Hence, and because you dread a reformation in. the 
modern scandalous practice of the profession should an upright 
discerning Scotch lawyer come to preside on the bench, is one of 
those distinguished Scotch barristers become the object of your 
obloquy and virulence, although he is no less an ornament to the 
English senate and bar than to his family and country.” 

But his progress could not be diverted either by male- 
volent vituperation or by absurd eulogy. For some years 
afterwards he was chiefly distinguished as a parliamentary 
leader. From the rigorous enforcement of the standing 
order against the publication of debates, we have hardly 
any fragments of his eloquence, — but memoir writers in- 
form us of the occasions when he came forward with most 
effect. He ably carried through the House of Commons the 
bill for abolishing hereditary jurisdictions in Scotland, and 
the other measures devised by Lord Hardwicke for the 
tranquillity and civilisation of the Highlands. Beyond the 
common routine of official duty, he opposed, with spirit, 
although without effect, a bill introduced into the House of 
Commons to forbid the insurance of enemies’ ships in time of 
war. The ultra-free-trade principles which he then advocated 
would appear very startling even at the present day, and, 
indeed, would furnish a defence of the Dutch doctrine, that 
a besieged city should sell gunpowder and balls to the be- 
sieging army. Considering that, if enemies’ ships are in- 
sured by British underwriters, there is a strong temptation to 
communicate intelligence to the owners of the sailing of British 


365 


CHAP. 
XXXII. 


A.D. 1747, 





Murray an 
ultra 
free trader, 


366 


CHAP. 
XXXII. 


a.v. 1748. 


November, 


REIGN OF GEORGE II. 


cruisers ; and that, upon a capture, there is an indemnity to 
the enemy from British capital, —independent of any tech- 
nical objection from the illegality of a contract with an alien 
enemy, — there seems rational ground for prohibiting such 
policies of insurance. But Mr. Solicitor General Murray 
delivered a very long and ingenious speech in defence of 
them. The first part of it, in which he inveighed against 
the narrow-minded views which had guided English com- 
mercial legislation, is admirable. He is particularly severe 
upon the monstrous injustice and impolicy of the acts by 
which the Irish were prevented from importing their corn 
and cattle into England, —and, when they were establishing 
manufactures of their own, were prevented from exporting 
their manufactured goods to any foreign country where they 
might rival those of England. Having shown the high pro- 
fits derived by us from the business of insurance, he thus 
proceeded :— 

“Tt is well known that there is not a more enterprising, ad- 
venturous people in Europe than the French naturally are, nor a 
people who have a greater itch for everything that looks like 
gaming. ‘Their having no public insurance office nor any number 
of private insurers in France does not proceed from want of rich 
men who would be ready and willing to undertake this business, 
but from the difficulty they find at present to get any custom in 
this line. ‘The French merchants have been so long used to our 
shop, and have always found themselves so honourably dealt with 
here, that they will not voluntarily go elsewhere. Let things 
remain as they are, and it will never be in the power even of the 
government of France to set up a public insurance office, nor can 
any private man there become an underwriter with any hope of 
success. But this bill being passed, insurance offices will be 
established in Paris, Nantes, and Bordeaux, in which French ships 
will be insured not only in time of war but in time of peace; and 
not French ships only, but the ships of all other foreign nations. 
Thus, sir, we are to strip ourselves of a most valuable branch of 
trade, and to transfer it to the French that they may become more 
wealthy in peace and more formidable in war.” * 

When the inglorious contest in which we had been for 
some years engaged was at last brought to a close, the task 





* Holliday, 90—97.; 14 Parl. Hist. 108—133. 


LIFE OF LORD MANSFIELD. 


of defending the treaty of Aix-la-Chapelle in the House of 
Commons devolved upon the Solicitor General. It was first 
canvassed in the debate on the King’s speech announcing that 
it had been concluded, before a copy of it had been laid upon 
the table of the House. In answer to the attack led on by 
Mr. Nugent, who moved a vote of censure, Murray said, “I 
know nothing of the late treaty which the honourable mem- 
ber has so violently attacked, except from the public news- 
papers; but if the articles be such as they represent, the 
peace is more advantageous for us than under the circum- 
stances could have been expected, and the marvel is that the 
French were induced to agree to it.” He then goes over the 
articles sertatim such as they were “rumoured to be,” — 
showing that, in reality, he must have had a considerable 
hand in negotiating them. The topic he chiefly dwelt upon 
was the danger to which the Dutch would have been exposed 
if hostilities had been continued; and, this having been ridi- 
culed by his opponent, he indignantly observed — 

“‘ Danger, sir, has always a very different effect upon the ima- 
gination of those who are near and those who are at a distance 
from it. The former view it through the right, the latter through 
the wrong end of a telescope. Gentlemen of England, who sit 
here at their ease, may think that the Dutch might have trusted 
to their dykes, and defied the whole military power of France ; 
but, when we talk of the necessity of making peace, we must con- 
sider in what light the Dutch themselves viewed the perils by 
which they were environed. Suppose (for, as I have no know- 
ledge of the fact, I can only suppose) them to have been so much 
alarmed that they would have agreed to a neutrality if we had 
refused the offered terms of conciliation. Their troops being with- 
drawn, our army would have been much inferior to that of France, 
and our national honour might have been put to hazard. ‘The 
French court must have been sensible of that which seems to have 
escaped the acuteness of honourable members opposite, and there- 
fore, I again say, we may well wonder that the terms of peace are 
so favourable.” * 

For some sessions after this, Murray led a quiet life in the 
House of Commons, for Pitt was in office; and, although 
there never existed any cordiality between them, while they 


* 14. Parl. Hist. 331. 


367 


CHAP. 
XXXII. 


A.v. 1748, 
1749. 

His speech 
in defence 
of the 
treaty of 
Aix-la- 
Chapelle. 


Interval of 
quiet to 
Murray 

in the 


368 


CHAP. 
XXXII. 


House of 
Commons 
while Pitt 
was in 
office. 


Death of 
Frederick, 
Prince of 
Wales. 
20th March, 
1751, 


The Re- 
gency Bill. 


REIGN OF GEORGE II. 


remained colleagues there was a suspension of open hostilities. 
In the debate on the Bavarian subsidy they both spoke at 
great length,—to the astonishment of the House, on the 
same side; and as the defensive was not the field in which 
the great patriot was qualified to shine, although he was so 
tremendously formidable as an assailant, — the silver-tongued 
lawyer will be found on this occasion much more dexterous 
and efficient in explaining the questions which then agitated 
the German Empire, and proving that it was for the advantage 
of England to induce Bavaria to take part with Austria 
against France.* 

An unexpected event soon after occurred, which disturbed. 
party connections and changed the history of the country — 
the death of the Prince of Wales. He was not much dis- 
tinguished for prudence or steadiness; but all who had been 
disappointed in their hopes of advancement were inclined to 
speak favourably of his openness of manner and warmth of 
heart, and the reign of Frederic I., while dreaded by some, 
had been looked forward to by many with impatience. 

The reigning Sovereign being turned of seventy, and the 
youth who was now heir apparent being of tender years, it 
became necessary, in case of a demise of the Crown, to provide 
for the exercise of the royal authority by a Regent. George 
II. wished to appoint his favourite son, the Duke of Cumber- 
land, — styled alternately the “ Hero of Culloden” and the 
«* Butcher ;” and the people demanded the Princess Dowager 
of Wales, insinuating that an infant sovereign would be safer 
under the guardianship of his mother than of his uncle.t By 
way of compromise, a bill was brought in to constitute the 
Princess Regent — with a Council, of which the Duke of 
Cumberland was to be President. Murray had the drawing 
of this bill, and the conduct of it through the House of 
Commons. His speech in support of it forcibly pointed out 
the defect in our constitution by which the next heir coming 
to the throne, although a baby incapable of uttering an arti- 


* 14 Parl. Hist. 930—970. 

+ “TJ fear no uncles dead,” was a common quotation, although the Duke of 
Cumberland was a very honourable and, upon the whole, a very respectable 
character. - 


LIFE OF LORD MANSFIELD. 


culate sound, is supposed to be of full age, and instruments 
passing under the great seal in his name have the same 
validity as if he had actually approved and sanctioned them, 
being of mature years,—so that the person who can get the 
baby monarch into his custody may first usurp supreme 
power as Protector, and then attempt to make himself the 
head of a new dynasty —as was done by the Duke of 
Gloucester, afterwards Richard III.; pointed out the impos- 
sibility of a general law to provide for carrying on the 
executive government during the minority or disability of 
the Sovereign; and dwelt upon the wisdom of going no 
further for the present than enacting the course to be pur- 
sued if his Majesty should be called away before his 
grandson, Prince George, had reached the age of eighteen. 
He proved, easily enough, that the Princess Dowager was the 
fittest person to be named for Regent; but he ineffectually 
tried to enforce the point that she ought to be controlled 
by a Council — the constitutional notion being that, with a 
few exceptions to protect the established religion and the 
succession to the throne, a Regent ought to exercise all 
the royal prerogatives under ministerial responsibility. In 
this courtier-like fashion did he try to struggle with the 
difficulty : — 

“ T have so firm, so well-grounded an opinion of the many good 
qualities of the Princess, that I am convinced our investing her 
with sovereign power would be attended with happiness, and 
perhaps glory, to the nation; but for this very reason I am 
against it: the precedent would have such weight, that a future par- 
liament could not depart from it, however strong the reasons might 
be for following a different course; and, as this might be of 
dangerous consequence to her posterity, 1 am prevented from 
evincing the regard which is due to her extraordinary endow- 
ments.” * 

The bill passed; but George II. survived till his grandson 
was able to say from the throne that “ he gloried in the name 
of Briton.” 

Murray had managed this matter with such dexterity that 
he seemed hardly liable to the political vicissitudes by which 


* 14 Parl. Hist. 1033. 
VOL. II. BB 


369 


CHAP. 
XXXII. 





A.D. Livoie 


370 


CHAP: 


XXXII. 


ADs 15) 


—1753. 
Charge 
against 
Murray 
that he 
drank the 
health of 
the Pre- 
tender, 


REIGN OF GEORGE II. 


hopes of official stability or promotion are sometimes dashed, 
and he himself thought he was equally secure under King or 
Regent, — when, in a clear sky, a storm arose which very 
nearly overwhelmed him. — He was charged with being an 
adherent of the Pretender. 

The scrape in which he so unexpectedly found himself in- 
volved occasioned infinite annoyance and vexation to him, and 
he did not get out of it with entire credit. 

When at Westminster School, his most intimate associates 
were four boys in the same form with himself; Fawcet, 
Johnson, Stone, and Vernon. The father of the last, al- 
though a draper in Cheapside, was of ancient blood, and had 
embraced trade when a younger brother. The family estate 
descended upon him, but it was considerably reduced, and 
he continued to vend his wares as before. Like most of the 
landed aristocracy, he was a furious Jacobite, — making 
no secret of his political propensities. Young Vernon was in 
the habit of taking Murray, Fawcet, Johnson, and Stone to 
his father’s house on holidays; and there they most unques- 
tionably must have heard much Jacobitism talked, whatever 
else may have happened. Old Vernon was very kind to 
them, and took particularly to Murray—being charmed with 
his good looks, his vivacity, and his agreeable conversation, 
as well as prejudiced in his favour by his noble birth and 
his true blue connections. The five young friends, although 
carried away in different directions by the accidents of life, 
still kept up a correspondence by letter, and occasionally met 
together at supper at the Jacobite draper’s in Cheapside 
after Mr. Murray had been called to the bar. Young 
Vernon embraced the same profession, but, from ill health, 
had been unable to prosecute it. Fawcet had settled as a 
provincial barrister at Newcastle, and had become Recorder 
of that town. Johnson had taken orders, and was an assist- 
ant master of Westminster School. Stone, who was a 
remarkably fine classical scholar, was dedicating himself to 
literature, and hoped by his pen to rise to be a Prebendary, 
or a Commissioner of Customs. In the course of a year or 
two, young Vernon died, — but Murray continued a friendly 
intercourse with the father, who, being childless, threw out 


LIFE OF LORD MANSFIELD. 


hints that he meant to adopt him as a son, and actually left 
him by will his family estate in the counties of Chester 
and Derby, which still belongs to the Mansfield-Murrays. 

After the death of Frederick Prince of Wales, Fawcet re- 
maining Recorder of Newcastle, Johnson, by Murray’s in- 
terest, from being a Prebendary of Durham was promoted to 
the see of Gloucester. Stone, having been some time private 
secretary to the Duke of Newcastle, had been appointed sub- 
governor or preceptor to Prince George. 

It happened that at the dinner-table of the Dean of Dur- 
ham the conversation turned upon Johnson’s late elevation, and 
the interesting question arose, who was to have his prebend ? 
The Dean said, “ The last news from London is, that Dr. 
Johnson is to keep it.” Fawcet, who was one of the party, 
observed, “ I am glad Johnson gets on so well, for I remem- 
ber him a Jacobite several years ago, when he used to be 
with a relation of his, who was very disaffected,—one Vernon, 
a mercer,— where they frequently drank the Pretender’s 
health.” The imprudent Recorder, elevated by wine and 


~ gnawed by envy, gave further particulars of those love feasts, 


and introduced the names of Murray, the Solicitor General, 
who had gained such éclat by prosecuting the rebel Lords, 
and of Stone, now intrusted to conduct the studies and to 
form the principles of the Heir-Apparent to the throne. 

Among the guests present was the foolish old Lord Ravens- 
worth. He most officiously, and in breach of the implied 
confidence which forms the charm of social intercourse, posted 
off to London, and communicated this conversation to Mr. 
Pelham. The Prime Minister listened to the tale with 
much distaste, but felt it his duty to repeat it to the King. 
With admirable good sense, his Majesty exclaimed “It is of 
very little importance to me what the parties accused may 
have said, or done, or thought, while they were little more 
than boys: I am quite satisfied with the assurance that they 
have since become, and now are, my very faithful subjects 
and trusty servants.” 

But the matter was seriously taken up by the opponents 
of the Government; and a petition to the King, numerously 


signed, praying for investigation, contained the following 
‘ BB2 


371 


CHAP. 
XXXII. 


Jan. 1753. 


372 


CHAP. 
XXXII. 


ASD. (oo. 


Feb. 15. 


Hearing of 
the charge 
before the 
Privy 
Council, 


REIGN OF GEORGE Ii. 


passage : —‘ That to have a Scotchman of a most disaffected 
family, and allied in the nearest manner to the Pretender’s 
first minister*, consulted on the education of the Prince of 
Wales, and intrusted with the most important secrets of 
Government, must tend to alarm and disgust the friends 
of the present royal family, and to encourage the hopes and 
attempts of the Jacobites.” 

It was resolved that the accusation deserved no further 
notice; and Murray, who had been made very uneasy by 
the rumour about him which had got afloat, believed that the 
matter was at an end. But Stone preposterously insisted on 
a solemn inquiry; and the charge against him, Murray, and 
Johnson was referred by the King to the Privy Council. 

Murray, strongly protesting his innocence, at first said 
that he would resign his office sooner than submit to such a 
degrading examination, but was afterwards persuaded by his 
friends to appear and make his defence along with Johnson 
and Stone. 

When the hearing came on, there was no case made against 
the first supposed delinquent; for, Fawcet the only wit- 
ness, said that at such a distance of time he could not 
swear that Johnson had drunk the treasonable healths, or 
had been present at the drinking of them.t But he posi- 


* The following is Horace Walpole’s account of this gentleman, in his sketch 
of the court of the Pretender :—‘“ His next prime minister was Murray, nominal 
Earl of Dunbar, brother of the Viscount Stormont and of the celebrated Soli- 
citor General. He was a man of artful abilities, graceful in his person and 
manner, and very attentive to please. He had distinguished himself, before he 
was of age, in the last parliament of Queen Anne, and chose to attach himself 
to the unsuccessful party abroad, for whose re-establishment he had co-operated. 
He, when still very young, was appointed governor to the young princes; but, 
growing suspected by the warm Jacobites of some correspondence with Sir 
Robert Walpole, and not entering into the favourite project of Prince Charles’s 
expedition to Scotland, he thought fit to leave that court and retire to Avignon, 
where, while he was regarded as lukewarm to the cause, from his connection 
with the Solicitor General here, the latter was not at all less suspected of devo- _ 
tion to a court where his brother had so long been first minister.” 

+ He afterwards wrote the following suspicious letter, to clear the Bishop, 
who, hearing that he was repeating the calumny, insisted on a written recanta- 
tion from him ; — 

“ London, 29th January, 1753. 

“My Lord,—I take the liberty of giving you the trouble of this letter, in 
order to wipe off any reflections which may have been to your Lordship’s preju- 
dice from a misconstruction or misrepresentation of any thing said by me at the 
Dean of Durham’s last summer. It is now, I believe, near twenty years since 
your Lordship and I met at my relation’s, and before that time I never had any 


LIFE OF LORD MANSFIELD. 


tively averred that “both Stone and Murray, on various 
occasions down so late as the year 1732, had, at Mr. Vernon’s 
house, drunk the health of the Pretender, and once he was 
sure they had done so on their knees: the conversation was 
wont to be partly literature, partly treason; the customary 
healths, Tor CHEVALIER and THe Eart or Dunsar.” 
However, on his cross-examination, he prevaricated a good 
deal, and it appeared that he was actuated by an undue wish 
either to spite or to screen his old associates. 

Stone, although he had so loudly demanded the inquiry, 
was generally supposed to be the most seriously liable to the 
charge; and there is now much reason to suspect that he 
tinctured the mind of his royal pupil with Jacobitical or 
high-Tory principles, — telling him that, although it was im- 
possible to recall the Stuarts, they had been unjustly ex- 
pelled, and that the divine right of kings ought to be the 
rallying cry of the new dynasty which God had placed upon 
the throne. He soon after fell into obscurity; but great 
interest was then excited by his case, from a general wish 
that he should be removed and make way for a more en- 
lightened and liberal instructor. His defence was said to be 
very ingenious, but no part of it has been preserved. The 
following is a slight sketch of the address of the Solicitor 
General : — 

* Tiliberal and unfair reflections have been made on the political 
principles of my relations ; but, my Lords, I was early sent to seek 
my own way in the world; I learned to form opinions for myself, 
and I have been well affected to the present establishment ever 








acquaintance with your Lordship ; and it really surprises me very much, that 
any inference from what I said of my relation’s principles in politics should, by 
any one, be applied to your Lordship. It is a very disagreeable thing to be 
giving an account of what has passed in any conversation; but it is my duty, in 
the most solemn manner, to declare, that I did not, and could not, say any thing 
which in the least could, or which was any way meant by me to charge your 
Lordship with being the proposer of, or ever being present at, the drinking of 
any disloyal healths. I am very sorry for the trouble you have had about this 
affair; and am, with the greatest respect, 
«“ My Lord, 
“ Your Lordship’s most obedient humble servant, 
«Cur. Fawcer. 

« Whatever has been construed as a surprise of mine at your Lordship’s pre- 
ferment, 1 am sure it was meant by me as an intimation only that your Lordship 
was fortunate in having the preferments drop at the time they did. 

“ Lord Bishop of Gloucester.” 

BBS 


373 


CHAP. 
XX XII. 


AiDeltoge 


Murray’s 
speech in 
his own 
defence, 


374 


CHAP. 
XXXII. 





A.D. 1753. 


REIGN OF GEORGE II. 


since I could think on the subject. When I went to the University 
of Oxford I took the oaths to the Government, and I did so with 
seriousness and ex animo. Pleading in the courts at Westminster 
and at the bar of either House of Parliament, I never uttered a 
word to disparage the Protestant settlement, or to create any 
longing for the exiled family. I determined never to come into 
the House of Commons but upon Whig principles, and I at last 
accepted a seat under the auspices of a noble Duke, now present, 
who, for forty’years, has been the firmest friend of the Hanoverian 
line. With regard to office, can it be supposed that a person of 
Sir John Strange’s well-known loyalty would have resigned in my 
favour if he had not been thoroughly convinced of my sincerity ? 
Considering my position at the bar, I had little to gain by making 
any concessions for official rank ; and, ever since I have been in 
the King’s service, I have got nothing by my employment (I am 
sure I do not speak it reproachfully) but the ordinary fees for the 
business which has occupied my time. No friend of mine have I 
ever recommended to preferment. I have not been able to learn 
any objection to my public conduct except that, in prosecuting the 
rebel Lords, I did not load them with reproachful epithets ; as if 
epithets would have added to their guilt. I never considered that 
such language would be agreeable to my royal master; and, if I 
had been counsel for the Crown against Sir Walter Raleigh, and 
that unfortunate man had been as clearly guilty of high treason as 
the rebel Lords, I would not have made Sir Edward Coke’s speech 
against him to gain all Sir Edward Coke’s estate and all his 
reputation.” . 

He then commented minutely and forcibly on the evidence 
of Fawcet; and having thanked the Lords for their indulgence 
in hearing him, and the goodness and justice by which the 
King was actuated in desiring that his servants should not 
be stabbed in the dark, he concluded by a solemn declaration 
that he had never given any treasonable toasts at Mr. Ver- 
non’s or elsewhere, and that he had never consciously been 
present when any such toasts were drunk. * 

Mr. Murray having concluded, the Lords of the Council 
came to a unanimous resolution of reporting to his Ma- 


* Some accounts say that he voluntarily took an oath before the Lords of the 
Council to the same effect ; but this I do not believe, for he would hardly have 
ventured on such an appeal to Heaven, under the reservation in his own mind 
that the toasts were drunk in frolic, and that, in the midst of vapouring language, 
there was no real design of treason. 


LIFE OF LORD MANSFIELD. 


‘ 


jesty “that there appeared to them no foundation for any 
part of the charge, and that the characters of the parties 
accused were in no degree affected by it.”* 

The discussion was revived before Parliament by a mo- 
tion of the Duke of Bedford for an address to the King, 
praying that he would be graciously pleased to direct a copy 
of all these proceedings to be laid before the House of Lords; 
but this was negatived without a divisiont, and no further 
inquiry was made into the circumstances. t 

Thus Murray preserved his position, notwithstanding an 
accusation which threatened such serious consequences. 
Although it did not in any degree hinder his advancement in 
public life, it somewhat damaged his reputation for sincerity, 
_ and it afforded a topic to his opponents of which they ever 
after unsparingly availed themselves. They perceived that 
there was a vulnerable point, at which they might aim a 
staggering blow; and, subsequently, on important occasions, 
he betrayed an increased timidity, which materially impaired 
the effect of his consummate talents for debate. 

Soon after the close of this inquiry Pitt resigned his office, 
being mainly induced to do so from the difficulty he had for 
some time experienced in gratifying his propensity to assail 
his old rival. He made ample amends for his late unwilling 
forbearance. Thus, in uttering a vehement invective against 
the University of Oxford for its Jacobitism, he palpably re- 
ferred to the supposed youthful opinions of Mr. Murray : — 

“The body he was describing,” he said, “was learned and 
respectable ; so much the more dangerous! He would mention 

* Hall. 98—104.; Doddington’s Diary, 211—235.; Walpole’s Memoirs of 
the Reign of George II., i. 266—-290. 

t+ This debate is not mentioned in the Parliamentary History, but a full 
account of it is given by Horace Walpole, Mem. Geo. II., vol. i. p. 272—290. 


¢ An attempt was made to ridicule the Duke of Bedford, and to laugh away 
the whole affair, by a jeu d’esprit which thus began :— 


“ To probe thy crimes, disloyal Fiend, 
See council of the state convened. 
‘My Lords’ (an age-wise peer addrest), 
‘ These crimes convulse my loyal breast : 
Ere manhood’s down, accusers say, 
Had graced his chin, ere taught to pray, 
He drank, afraid of no detection, 
Disloyal healths with genuflection.’ ” 


BB 4 


375 


CHAP. 
XXXII. 


A.D. 1753. 
He is ac- 
quitted, but 
suspected. 


March 22, 


Pitt’s at- 
tack upon 
him as a 
Jacobite, 


376 


CHAP. 
XXXII. 


A.D. 1753. 


Murray’s 
celebrated 
vindication 
of our 
naval 
rights, 


REIGN OF GEORGE II. 


what had happened to himself the last summer, on a party of 
pleasure thither. They were at the window of the Angel Inn; a 
lady was desired to sing Gop SAVE GREAT GEORGE OUR Kine. 
The chorus was re-echoed by a set of young lads drinking at a 
college over the way, but with addition of rank treason. He 
hoped, as they were boys, he should be excused for not having 
taken more notice of them. Perhaps some of them might here- 
after zealously fill the office of Attorney or Solicitor General to a 
Brunswick Sovereign. After this, walking down the High Street, 
in a bookseller’s shop he observed a print of a young Highlander 
with a blue ribbon. The bookseller, thinking he wanted it, held 
it out to him. But what was the motto? Hune saltem everso 
juvenem! This was the prayer of that learned body. Yet, if 
they are disappointed in their plots, the most zealous of them, when 
leader of the Government party in this House, may assure you 
that he always approved of the Protestant succession, and that he 
refused to enter parliament except upon Whig principles.” 

«Colours, much less words,” adds Horace Walpole, who 
has reported this speech, “could not paint the confusion and 
agitation that worked in Murray’s face during this almost 
apostrophe. His countenance spoke everything that Faweet 
had been terrified to prevaricate away.” * 

We shall find that Pitt long afterwards returned to the 
assault with the same weapon in his hand, and that it was 
unmercifully used by Junius and by Horne Tooke against 
Lord Chief Justice Mansfield in the succeeding reign. 

Murray closed the longest and most brilliant Solicitor Ge- 
neralship recorded in the annals of Westminster Hall by a 
service of lasting importance to the rights of Great Britain, 
upon which depends her greatness as a maritime power. 
The King of Prussia, backed by some neighbouring states, 
had sought to remodel the law of nations in a way that 
would have rendered naval superiority in time of war of little 
avail,—by asserting that belligerents are not entitled to seize 
upon the ocean the goods of enemies in neutral ships; by 
insisting that contraband of war, the property of neutrals, 
may be carried by them to enemies’ ports; by denying the 
right of belligerents, under any circumstances, to search the 
vessels of neutrals; and by attacking the legality and validity 


* Walp. Mem., i. 358, 


LIFE OF LORD MANSFIELD. 


of all the proceedings in the Courts of Admiralty of Eng- 
land for a condemnation of neutral ships or goods by reason 
of an alleged violation of the duties of neutrality. These 
pretensions were embodied in a memorial presented by M. 
Michell, the Prussian minister at the Court of St. James’s. 
The masterly answer to it is signed by Sir George Lee, 
Judge of the Prerogative Court, Dr. Paul the Advocate 
General, and Sir Dudley Ryder the Attorney General, as 
well as by Mr. Murray the Solicitor General; but we know, 
from undoubted authority, that the composition of it was ex- 
clusively his.* Having myself been employed to write such 
papers, 1 may possibly be not unqualified to criticise it, and 
I must say that I peruse it with “a mixed sensation of ad- 
miration and despair.” The distinctness, the precision, the 
soundness, the boldness, the caution, which characterise his 
propositions, are beyond all praise; and he fortifies them 
by unanswerable arguments and authorities. Preserving 
diplomatic—nay, even judicial calmness and dignity,—he does 
not leave a tatter of the new neutral code undemolished. 
Thus with imperishable granite he laid the foundation on 
which the eternal pillar of England’s naval glory has been 
reared. 

This performance particularly excited the admiration of 
the President Montesquieu, who said it was “ réponse sans 
réplique.” It is the great repertory to which our advocates 
and judges have had recourse when any part of these dan- 
gerous pretensions has been readvanced. Sir William Scott 
(Lord Stowell) often quoted it, always spoke of it with re- 
verence, and represented his own decisions, which are received 
with submission throughout the civilised world, as only an 
expansion of its principles. 

It would be desirable to relieve the tiresomeness of these de- 
tails by describing the Solicitor General as he appeared in the 
social circle, but at this period we know hardly anything of him 
except as a lawyer or a politician. After the death of Pope, 
although he by no means neglected literature, he does not seem 
to have admitted any literary character to hisintimacy. I am 


* Holliday, 424. 


377 


CHAP 
XXXII. 


A.D, 1758. 


His private 
life. 


378 


CHAP. 
XXXII 


His enjoy- 
ment of 
Jassitude, 


His patron- 
age of 
Black- 
stone. 


REIGN OF GEORGE II. 


sorry I cannot find that he ever noticed his countryman Thom- 
son, or that he ever desired to be introduced to the author of the 
Rambler. In truth, he was so overwhelmed by professional 
and official business, that, when he could escape from it for a 
brief interval, he preferred repose, with less intellectual 
society, to gladiatorial contests with the rising wits of the 
age. He continued gratefully attached to those who had 
been kind to him in his juvenile days, and he still used often 
to visit the first Lord Foley on a Saturday in the country, 
and remain with him till the Monday morning, when business 
called him back to town. ‘On a brother barrister interro- 
gating him how he could spend his time where so little 
pleasantry or liveliness prevailed, — ‘It is enough,’ said he, 
‘if I contribute by my visits to the entertainment of my fast 
friends; or, if I fail in that, I am sure to contribute by 
lassitude to the repose of my own faculties.’ ”* 

If he did not foster any young poet, he deserves the credit 
of discovering and turning to public usefulness the genius of 
Blackstone as a jurist. The professorship of civil law in the 
University of Oxford being vacant, he recommended this 
extraordinary man, then quite unknown, as decidedly the fittest 
person to fill it. The Duke of Newcastle promised him the 
appointment ; but, ever eager for a dirty job rather than for 
the public good, he thought it right to probe a little the 
political principles of the candidate, and to ascertain how far 
he could be relied upon as a party tool, and, more suo, he 
thus addressed Mr. Blackstone when presented to him: “ Sir, 
I can rely on your friend Mr. Murray’s judgment as to your 
giving law-lectures in a good style, so as to benefit the 
students; and I dare say I may safely rely upon you, when- 
ever anything in the political hemisphere is agitated in that 
University, you will, sir, exert yourself in our behalf.” The 
answer was, “ Your Grace may be assured that I will dis- 
charge my duty in giving law-lectures to the best of my 
poor abilities.” “ Ay, ay,” replied his Grace hastily, ‘and 
your duty in the other branch too.” Blackstone made a 
hesitating bow, and, a few days after, had the mortification to 


* Holliday, 131. 


LIFE OF LORD MANSFIELD. 


find, from the Gazette, that Jenner, utterly ignorant of law, 
civil, canon, and common, but considered the best electioneering 
agent in the whole University, was appointed to expound 
the Pandects, which he had never read, and could not 
construe. 

Murray behaved with spirit and judgment; for he advised 
Blackstone to settle at Oxford, and to read law-lectures to 
such students as were disposed to attend him. The plan had 
splendid success, and, happily, soon after suggested to the mind 
of Mr. Viner the establishment of a professorship for the Com- 
mon Law of England in the University of Oxford. To this we 
owe the immortal Commentaries of Blackstone, which, when 
they were given to the world, drew forth the following high 
tribute of approbation from him to whose judicious patro- 
nage they were to be traced. A brother peer having asked him, 
as a friend, what books he would recommend for his son, who 
was determined to be a lawyer, the Chief Justice replied, — 

“ My good Lord, till of late I could never with any satisfaction 
to myself answer such a question; but since the publication of 
Mr. Blackstone’s Commentaries I can never be at a loss. There 
your son will find analytical reasoning, diffused in a pleasing and 
perspicuous style. here he may inhale imperceptibly the first 
principles on which our excellent laws are founded; and there 
he may become acquainted with an uncouth crabbed author, Coke 
upon Littleton, who has disgusted and disheartened many a Tyro, 
but who cannot fail to please in the modern attire in which he is 
now decked out.” 

Murray had been Solicitor General for the unexampled 
period of twelve years, and grumbled at his bad luck in so 
long holding a subordinate office. Not only was the chief 
responsibility of legal business thrown upon him, but, 
while the Attorney General was politically a mere cipher, 
he himself was relied upon as the most efficient defender of 
the policy of the Government in the House of Commons. 
An event now happened which many thought would at once 
place Murray in the situation of Prime Minister — the sudden 
death of Mr. Pelham. Who was to succeed him? The Duke 
of Newcastle, notwithstanding his immense borough patro- 
nage and his low talent for intrigue, was pronounced by 


379 


CHAP. 
XXXII. 


A.D. 1753; 
1754. 


3d Mareh 
1754, 
Death of 
Mr. Pel- 
ham, 


380 


CHAP: 
XXXII. 





A.D. 1754, 
Murray 
declines 
the situa- 
tion of 
Prime 
Minister. 


Duke of 
Newcastle 
Prime 
Minister, 


’ REIGN OF GEORGE II. 


George II. as fit only to be “master of the ceremonies at a 
small German court ;” and the nation, aware of his frivolity 
and his absurdities, concurred in this opinion. Pitt and 
Henry Fox were both men of splendid abilities, but they 
were both disliked by the King, and neither of them then 
had a sufficient aristocratic connection or popular reputation 
to be able to storm the Cabinet. Murray, even in Pelham’s 
lifetime, had been virtually the leader of the Lower House, 
and there would have been little change in the aspect or 
proceedings of that assembly if he had been put at the head 
of the Treasury. He was very agreeable to the King, and 
he was generally respected by the nation. A serious objec- 
tion to him arose in some quarters from the suspicion of 
Jacobitism ; — not that any one believed he would betray his 
trust and try to bring in the Pretender,— but some thinking 
men were afraid of his acting upon arbitrary principles of 
government, and many condemned him for the duplicity of 
which they believed he had been guilty. From personal 
reasons, Pitt and Fox, who still held office, both opposed his 
advancement; and even Lord Hardwicke, the Chancellor, 
viewed him with an eye of jealousy. * Had Murray himself 
really desired the elevation, and made a bold effort to obtain 
it, all these difficulties would probably have been overcome, 
and our party history at the conclusion of this and the com- 
mencement of the succeeding reign would have taken a very 
different turn; but, from a prudent dread of the vicissitudes 
of ministerial life, and from a high feeling that his destiny 
called him to reform the jurisprudence of his country, he 
sincerely and ardently desired to be placed on the bench, — 
and the special object of his ambition was to be Chief Jus- 
tice of England, with a peerage. Horace Walpole, indeed, 
sarcastically says “he was always waiving what he was 
always courting;” but all impartial observers declare that 
he invariably refused to go out of his profession for any 
promotion. 

The consequence was, that the Duke of Newcastle, the 
person most incompetent, and, therefore, least exciting 
jealousy of all who had been thought of on this occasion, 


* Walpole’s Memoirs, vol. i. p. $29. 


LIFE OF LORD MANSFIELD. 381 


became Prime Minister, to the astonishment of the whole CHAP. 

nation,—from the King on the throne to his Grace’s own ae 

lacqueys, who had often been jeered at by brother lacqueys , , 1754, 

in the lobby of the House of Lords while, addressed by 

their masters’ titles, they discussed their masters’ characters. Murray 
Murray at last gained a step in professional rank, being Poe 

“4 A x eneral, 

appointed Attorney General, on the elevation of Sir Dudley 

Ryder to the bench. At the same time, he undertook the 

arduous duty of being Government leader in the House of 

Commons, which he would probably have declined had he 

foreseen that Pitt, dissatisfied with this arrangement, was 

again to resign his office and to go into hot opposition. 


382 


GHAP. 
XX XIII. 


A.D. 1754. 


Murray 
refuses the 


Rolls. 


REIGN OF GEORGE II. 


‘CHAPTER XXXIII. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS 
MADE LORD CHIEF JUSTICE OF THE KING'S BENCH. 


Soon after Mr. Murray had been placed in his new position, 
he had the offer of professional advancement. Sir John 
Strange, the Master of the Rolls, died; and as the holder of 
this office may sit in the House of Commons, the Duke of 
Newcastle was willing to confer it upon his champion there. 
To the Chancellor’s letter proposing this arrangement the 
following answer was received : — 
“ Clermont, Saturday, one o’clock. 

“ My dear Lord,—JI have the honour of your Lordship’s 
letter, & am most truly concerned for poor St John Strange, whom 
I honoured & loved extreamly for his many excellent publick 
qualities, & most amiable private ones. I scarce know any man, 
with whom I had so little acquaintance, that I should more regret. 

“JT am much obliged to you for your laying your thoughts 
before me in so kind & fulla manner. ‘There is every consider- 
ation which can come in question upon this occasion, stated in the 
plainest & most impartial light. To be sure it should be offered 


‘to the Attorney General. Common justice & proper regard 


require it, & therefore I hope y* Lordship will sound him upon it, 
this evening. I shall take no notice to him of it, directly or in- 
directly. tis fit that your Lordship shot have the whole trans- 
action of this affair, & I shall approve whatever you do in it, as he 
likes best ; I cannot at all guess what he woulddo. For the King’s 
service, it is, I think, to be wished that he should remain where he 
is; but, as his health is not quite good, & this is a very honourable 
station, consistent with his seat, figure, & use in the House of 
Commons, I cannot pretend to judge what he will do. If he shot 
accept it, it will be difficult to replace him.” 


Murray, without hesitation, declined the office, as he con- 
sidered it of a subordinate character, and not by any means 
opening to him the opportunity to which he aspired of 
making a great name as a Judge. 


LIFE OF LORD MANSFIELD. 


The two next years, although varied by strong excite- 
ment, must have been fertile of anxiety and annoyance to 
Murray, and he must sometimes have longed for the obscure 
repose of the Rolls. He had to defend an Administration 
which was feeble and unfortunate; and he was constantly 
assailed by an opponent of unparalleled power in invective 
and sarcasm, wholly unscrupulous in choosing topics and ex- 
pressions most to his purpose, and animated against him by 
long rivalry and personal dislike. 

Unfortunately, the Parliamentary History at this time is 
almost a blank; the few pages which it gives to several 
sessions being filled up with King’s speeches and addresses of 
the two Houses in return. But memoir-writers furnish us 
with a lively description of some of the conflicts which took 
place, and of the general results. “ Pitt,” says Lord Walde- 
grave, “ undertook the difficult task of silencing Murray, the 
Attorney General, the ablest man as well as the ablest 
debater in the House of Commons.”* Horace Walpole him- 
self, then a member of the House of Commons, in reference 
to the outset of the new Administration, observes, — 

“ Murray, who at the beginning of the session was awed by Pitt, 
finding himself supported by Fox, surmounted his fears, and con- 
vinced the House, and Pitt too, of his superior abilities. He grew 
most uneasy to the latter. Pitt could only attack; Murray only 
defend. Fox, the boldest and ablest champion, was still more 
formed to worry; but the keenness of his sabre was blunted by 
the difficulty with which he drew it from the scabbard ; I mean 
the hesitation and ungracefulness of his delivery took off from the 
force of his arguments. Murray, the brightest genius of the three, 
had too much and too little of the lawyer: he refined too much, 
and could wrangle too little, for a popular assembly. Pitt’s figure 
was commanding ; Murray’s engaging, from a decent openness ; 
Fox’s dark and troubled; yet the latter was the only agreeable 
man. Pitt could not unbend ; Murray in private was inelegant ; 
Fox was cheerful, social, communicative. In conversation none of 
them had wit: Murray never had: Fox had in his speeches, from 
clearness of head and asperity of argument. Pitt’s wit was genuine ; 
not tortured into the service, like the quaintnesses of my Lord 
Chesterfield.” f 


* Wald. Mem., p. 31. {+ Walp. Mem., i. 490. 


383 


CHAP. 
XXXIII. 





A.D. 1754 
—1756. 


Passages 
of arms 
between 
Murray 
and Pitt. 


384 


CHAP. 
XXXII. 





A.), 1754 
— 1756. 


REIGN OF GEORGE Il. 


Henry Fox, in a letter to a friend, after giving some 
account of two speeches delivered by Pitt in the following 
session, adds, “ In both speeches, every word was Murray ; 
yet so managed, that neither he nor any body else did or 
could take public notice of it, or in any degree reprehend 
him. I sat near Murray, who suffered for an hour.”* 

«On another occasion,” according to Mr. Butler, “ Pitt 
made use of an expression of savage triumph which was long 
in every mouth. Having for some time tortured his victim 
by general invective, he suddenly stopped, threw his eyes 
around, then, fixing their whole power on Murray, uttered 
these words in a low, solemn tone, which caused a breathless 
silence: ‘ I must now address a few words to Mr. Attorney: 
they shall be few, but they shall be daggers.’ Murray was 
agitated; the look was continued; the agitation increased. 
‘ Judge Festus trembles !’ exclaimed Pitt; ‘he shall hear me 
some other day.’ He sat down. Murray made no reply, 
and a languid debate proved the paralysis of the House.” f 

The qualities of the rival orators are well contrasted by 
my friend Mr. Welsby: — 

“Tn closeness of argument, in happiness of illustration, in copious- 
ness and grace of diction, the oratory of Murray was unsurpassed ; 
and, indeed, in all the qualities which conspire to form an able de- 
bater, he is allowed to have been Pitt’s superior. When measures 
were attacked, no one was better capable of defending them; when 
reasoning was the weapon employed, none handled it with such 
effect ; but against declamatory invective his very temperament 
incapacitated him from contending with so much advantage. He 
was like an accomplished fencer, invulnerable to the thrusts of a 
small sword, but not equally able to ward off the downright stroke 
of a bludgeon.” t 

Nothing, however, gives us such an exalted opinion of the 
powers of both these extraordinary men as the praise of one 
who was himself an elegant speaker, who was their contem- 
porary, who had often listened to them, who had no personal 
favour for either of them, and who loved much more to sneer 
than to flatter. Thus writes Lord Chesterfield to his son:— 


* Appendix to Lord Waldegrave’s Mem., p. 153. 
+ Butler’s Remains, i. 154, ¢ Eminent Judges, p, 392. 


LIFE OF LORD MANSFIELD. 


“Your fate depends upon your success as a speaker ; and take 
my word for it, that success turns more upon manner than matter. 
Mr. Pitt, and Mr. Murray the Attorney General, are, beyond com- 
parison, the best speakers.) Why? Only because they are the 
best orators. They alone can inflame or quiet the House; they 
alone are attended to in that numerous and noisy assembly, that 
you might hear a pin fall while either of them is speaking. Is it 
that their matter is better, or their arguments stronger, than other 
people’s? Does the House expect extraordinary information 
from them? Not in the least; but the House expects plea- 
sure from them, and therefore attends; finds it, and therefore 
approves.” 

Murray had some consolation for the troubles and anxiety 
he went through in the opportunities which his influence 
with the Prime Minister gave him of obliging others. He 
was now able to procure for his friend Lord Milton the 
appointment to the office of Lord Justice Clerk, the highest 
Criminal judge in Scotland; which he thus announced to 
him : — 

“ Kenwood, Oct. 18, 1755. 

“ My dear Lord, —I have just rec’ the favour of yours. If 
there was but a remote possibility that I could be of use in any- 
thing which concerned you and your ffamily, I shou’d have reason 
to take it very ill if you did not let me know it. Ihappened to be 
with the Duke of Newcastle yesterday about 12 o’clock when the 
D. of Argyll’s letter came. I think I may wish you joy of the 
thing being done. The Chan” is at Wimple; but when I left the 
D. of N. he was determined to do it immediately without waiting 
to consult any body, therefore I need say no more, for I need not 
tell you how much I am 

“ Your aff. & ob. hu. serv* 
“ W. Murray.” 

Notwithstanding the éclat which Murray obtained from 
the contest he was carrying on in the House of Commons, 
and the power and patronage he enjoyed, he was most 
heartily sick of his position; and at the close of the session in 
May, 1756, he expressed deep regret that he had not adhered 
to the profession to which he was originally destined, so that 
he might have been vegetating unseen as the vicar of some 
remote parish. He often declared that he wished to have 

VOL. II. CC 


385 


CHAP. 
XXXII. 


— 


A.D. 1755, 





Letter to 
Lord 
Milton an- 
nouncing 
his ap- 
pointment 
as Lord 
Justice 
Clerk. 


Disagree- 
able and 
apparently 
desperate 
position in 
which 
Murray 
found him- 
self. 


386 


CHAP, 
XXXITI. 


ADagl fos 


May 25. 
Sudden 
death of 
Sir Dudley 
Ryder. 


Murray 
claims the 
office of 
Chief Jus- 
tice of the 
King’s 
Bench. 


REIGN OF GEORGE II. 


, 


j 
for his companions only the schoolmaster, the apothecary,, 
and the exciseman; and that he desired to know nothing of’ 
politics, except from a weekly newspaper taken in by the | 
village club. 

After the prorogation, the state of affairs, instead of mend- 
ing, became more disastrous. The Duke of Newcastle’s 
imbecility had involved the country in hostilities with France, 
and the war, which under other auspices was hereafter to be 
so glorious, began most unfortunately. Minorca was taken, 
—what was worse, the national honour was considered tar- 
nished by the flight of Admiral Byng without an effort to 
relieve Port St. Philip’s; and the clamour against the Govern- 
ment rose almost to frenzy. With what horror did Murray 
look forward to the reassembling of Parliament! How did 
he expect to quail under the vituperation of his rival! At 
this time his situation certainly was very disheartening. 
There seemed to be no chance of any honourable retreat for 
him. Sir Dudley Ryder had only been Chief Justice of the 
King’s Bench two years, and, being in a green old age, and 
likely long to fill the office, was about to be raised to the 
peerage. 

The day after Mr. Attorney General prepared the bill for 
the new barony, he heard that Sir Dudley Ryder was dead. 
Although he, no doubt, would have made every effort and 
submitted to any sacrifice for the purpose of preventing this 
catastrophe, we can hardly suppose that it excited no pleasur- 
able feeling in his mind. 

Ife immediately put in his claim for the vacant office. 
All perceived that this promotion must bring about an imme- 
diate change inthe Government. Charles Townshend, then 
an Opposition leader, said to him, “I wish you joy, Mr. 
Attorney ; or, to speak truly, I may wish joy to myself, for 
you. will ruin the Duke of Newcastle by quitting the House 
of Commons, and the Chancellor by going into the House of 
Lords.”* The Duke of Newcastle, who, notwithstanding 
his general obtuseness, was very acute in such matters, de- 
clared that “the writ for creating Murray Chief Justice 


* Walpole’s Mem., ii. 64. 


LIFE OF LORD MANSFIELD. 


would be the death-warrant of his own administration,” and 
resolved to try every possible expedient for the purpose of 
keeping him in the House of Commons. The negotiations 
(consisting only of earnest entreaties on one side, and flat 
refusals on the other) lasted several months, during which the 
Duke always rose in the tempting bribes which he offered, — 
beginning with the duchy of Lancaster for life, and, after 
tellerships and reversions without end for himself and his 
nephew Lord Stormont, ending with the offer of a pension of 
6000/. a-year if he would only stay in the House of Commons 
till the address was carried and the new session fairly begun. 
Murray, who saw full well that, in spite of any exertions he 
could make, the Ministry must be beaten on the address, 
declared that “he would on no terms agree to remain in the 
House of Commons for one session longer, or one month, or 
one day even to support the address ; and that he never again 
would enter that assembly.” Horace Walpole, in his usual 
satirical tone, says, “ He knew that it was safer to expound 
laws than to be exposed to them; and, exclaiming ‘ Good 
God! what merit have I, that you should load this country, for 
which so litile ts done with spirit, with the additional burthen of 
60002. a-year 2?’ at last peremptorily declared that if he was 
not to be Chief Justice, neither would he any longer be 
Attorney General.” 

The Duke of Newcastle and the Lord Chancellor, who 
were equally desirous to keep Murray where he was, were at 
last so far overcome by his firmness as to offer him the office 
of Lord Chief Justice of the King’s Bench; but stoutly made 
a difficulty about his peerage, in the hope that, not gaining all 
he desired, he might still change his mind. From the follow- 
ing letter to Lord Hardwicke it appears that there had been 
a good deal of discussion on this subject : — 

“« June 26. 1756. 

“ My Lord, — I don’t know whether the way in which I chose 
to express myself last night, when I said I had always considered 
the peerage & Ch. J. as going together, sufficiently conveyed that 
without the one I wished-to decline all pretensions to the other. 

“ Upon reflexion, as I have no hesitation, & never thought 
otherwise, I think it the most decent way to speak to be under- 


cc 2 


387 


CHAP. 
XXXIII. 


A.D. 1756. 
Vain efforts 
of the 
Duke of 
Newcastle 
to induce 
him to 
remain in 
the House 
of Com- 
mons. 


388 


CHAP. 
XXXIIL 





ADE 7 OG. 


REIGN OF GEORGE II. 


stood; for it wou’d grieve me extreamly to have the King twice 
troubled in any respect on my account. No possible event can 
alter my anxiety for his ease or service. 

“ T beg once more to give vent to the sentiments of my heart 
by saying, that the sense of my obligations to your ldP will be as 
conspicious as my friendship to the Duke of Newcastle, which can 
only end with the life of 

«Yr Ls most obliged, & obdt humble servt 
“ W. Murray.” * 

The Duke of Newcastle, pretending that the King was 
very reluctant to grant the peerage, wrote thus to the At- 
torney General : —— 

“ Kensington, July 2. 1756. 

« Dear Sir, — The King ask’d, whether I had seen Murray. 
I said, yes. ‘ Well, what says he?’ ‘Extremely sensible, Sir, of 
your Majesty’s great goodness to him, but wishes not to accept 
the one without the other.’ ‘Why! must I be forced? J will 
not make him a Peer ’till next session.’ ‘ Sir, all that Mr. Murray 
desires is, that they may be defer’d. I apprehend it would be dif- 
ficult, tho’ perhaps possible, to make the Chief Justice this term.’ 
‘IT know, that may be delay’d; or it is not necessary to do it now ;’ 
— and here ended the discourse. I hope I have done right. I 
am sure I intended it; but it is my misfortune to be distrusted by 
those from whom I never did deserve it. 

*“ T am, dear Sir, 
“ Ever yours, 
** Hotitis Newcastle.” f 

Murray was evidently aware of the juggle, and declared 
that without the peerage he would neither accept the Chief 
Justiceship nor remain Attorney General. 

If we may trust to the sincerity of the following letter 
from the Duke of Newcastle to Lord Hardwicke, his Grace 
had first given way : — 

« Was I singly to consult my own wishes, or, perhaps, my own 
interest, your Lordship knows what my thoughts are ; but when I 
consider that the present question is, whether Mr. Attorney General 
shall remain in the House of Commons, out of the King’s service, 
or be Ch. Justice, & a peer, I own I think the first would be 
attended with great inconveniencies to the King’s service, & I 
should hope that His Majesty would be graciously pleased to grant 


* Hardwicke MSS., Wimple. t Ibid. 


LIFE OF LORD MANSFIELD. 


his request, in consideration of the zeal & ability which he has 
shewed for a considerable number of years, in the employments 
with which His Majesty has honoured him.” 

It was pretty plainly perceived that if Mr. Murray were 
now refused his just demands he might be expected to be 
seen speedily in the House of Commons an Opposition leader ; 
and, the King’s scruples being easily overcome, the Chancel- 
lor wrote to announce that Mr. Attorney was to be Chief 
Justice and a peer. The following is the cold, stiff, and 
hypocritical reply : — 

“ Sunday night, Oct. 24. 1756. 

“ My Lord, — I am just come to town, and found your Lord- 
ship’s letter. It is impossible to say how much I feel your Lord- 
ship’s great goodness and attention to me throughout this whole 
affair. The business of my life at all times and on all occasions 
shall be to show the gratitude with which I bave the honor to be 

“ Your Lordship’s most obliged 
* and obt hum: serv* 
“¢ W. Murray.” 

On Monday, the 8th day of November, 1756, Murray was 
sworn in Chief Justice of the King’s Bench before Lord 
Chancellor Hardwicke, and created a peer by the title of 
Baron Mansfield, of Mansfield in the county of Nottingham. 
The following day the Administration to which he had be- 
longed was dissolved; but surely he is not to be blamed for 
the firmness which he exhibited in refusing to remain longer 
its champion in the House of Commons. 

No party considerations could require from him a useless 
sacrifice; and, for the welfare of the state, it was much better 
to bend to public opinion, and to make way for a new mi- 
nister who might restore confidence and conduct the war in 
which England was involved to an honourable issue. Morally 
speaking, he had as good a right to the office which he de- 
manded, as the eldest son has to the fee-simple lands of which 
his father died seised. He was by far the fittest man in the 
profession to fill it, and he had earned it by political services 
such as no law officer had ever rendered to any government. 

The appointment was almost universally praised. A very 
few illiberal individuals, trying as far as they were able to 
justify the imputation cast upon the English by Lord Lovat 

ce 3 


389 


CHAP. 
XXXITI. 


A.D. 1756, 


Murray 
Chief Jus- 
tice of the 
King’s 
Bench, 


The ap- 
pointment 
generally 
approved 
of, 


390 


CHAP. 


XXXIILI. 


A.D. 1756. 


His fare- 
well ad- 
dress on 
taking 
leave of 
Lincoln’s 
Inn. 


REIGN OF GEORGE II. 


when he said that “ his cousin Murray’s birth in the north 
might mar his rise,” grumbled because a Scotsman was placed 
at the head of the administration of justice in Westminster 
Hall, and tried invidiously to account for his rise by 
saying that “ he had no merit beyond the dogged industry 
which distinguished his poverty-stricken countrymen; ”* but 
all generous spirits frankly admitted his superiority for genius 
and acquirement, and scornfully repudiated the notion that, 
after the whole island of Great Britain had been united under 
a common legislature, regard was to be had, in filling any 
office under the crown, to the birth-place rather than to the 
qualifications of the candidate. 

Before following him in the new sphere which he entered, 
I ought to notice the graceful manner in which he concluded 
his career at the bar. To comply with ancient forms, it was 
necessary, as a preliminary step to his becoming a judge, 
that he should take upon himself the degree of the coif, and 
be transferred from Lincoln’s Inn to Serjeants’ Inn. The 
head of the society of which leave is taken, on this occasion, 
in a complimentary speech, addresses the retiring member, — 
who makes a suitable reply. The Honourable Charles Yorke 
(afterwards so brilliant in his life, and so unfortunate in_his 
death) was then Treasurer of Lincoln’s Inn. In presenting 


* Thus was he assailed in a letter, addressed to the editor of a newspaper, 
supposed to have been written by a brother lawyer with whom he was on fami- 
liar terms of intimacy : — “I should be sorry to see a Scotchman on an En- 
glish bench of justice, for several reasons; which I hope may occur to the wis- 
dom of the great in power before such judges are appointed, as it may not be 
very proper for me to mention them. An Englishman ought not to be put 
under the dominion of a Scot. It would prove an indelible reflection upon us 
to see a Seot in so high a station, when -so many of our own countrymen are 
infinitely better qualified and more deserving of preference. 1 remember an 
old friend of mine used to tell me of ‘a termagant Scot,’ as Shakespeare phrases 
it, that domineered at the bar of one of our courts of justice, in the reign of one 
of our kings who was second of his name,—probably Charles or James the 
Second, for it is natural to believe the plaid might meet with encouragement 
here in these reigns. This Scot emerged from his native wealds, rocky caverns, 
and mountainous heights pretty early in life, to fineer over a Scotch education 
with a little English erudition, and undoubtedly for preferment too, He 
brought along with him the same principles of government and loyalty as his 
country and family were remarkable for, and what his brother carried over to 
Rome, like apples to Alcinous, or coals to Newcastle. One would think such 
an opportunity might have had some gentle influence on the rugged nature of 
our emigrant, his pauper pride and native insolence; but it happened otherwise, 
for the Scot could not alter his nature; and so, in the midst of all the learning 
of our courts, he continued still a very Scot.” — Broadbotiom Journal. 


LIFE OF LORD MANSFIELD. 


to the new Serjeant. the votive offering of a purse of gold, 
he with good taste as well as warmth referred to the lustre he 
had conferred upon the English bar, and the qualifications he 
possessed for the high office to which he was appointed by 
the King with the most auspicious anticipations of the people. 
The following was the beautiful reply, — which, we are told 
by Mr. Holliday, who was present, was delivered “ with 
the greatest grace, ease, and perspicuity :”* — 

“ T am too sensible, sir, of my being undeserving of the praises 
which you have so elegantly bestowed upon me, to suffer com- 
mendations so delicate as yours to insinuate themselves into my 
mind; but I have pleasure in that kind of partiality which is the 
occasion of them. ‘To deserve such praises is a worthy object of 
ambition; and from such a tongue flattery itself is pleasing. 

“ Tf I have had, in any measure, success in my profession, it is 
owing to the great man who has presided in our highest courts of 
judicature the whole time I attended the bar. It was impossible 
to attend him, to sit under him every day, without catching some 
beams from his light. The disciples of Socrates, whom I will 
take the liberty to call the great lawyer of antiquity, since the 
first principles of all law are derived from his philosophy, owe 
their reputation to their having been the reporters of the sayings 
of their master. If we can arrogate nothing to ourselves, we can 
boast the school we were brought up in; the scholar may glory in 
his master, and we may challenge past ages to show us his equal. 

“ My Lord Bacon had the same extent of thought, and the same 
strength of language and expression ; but his life had a stain. 

“ My Lord Clarendon had the same ability and the same zeal 
for the constitution of his country ; but the civil war prevented 
his laying deep the foundations of law, and the avocations of 
politics interrupted the business of the Chancellor. 

“ My Lord Somers came the nearest to his character; but his 
time was short, and envy and faction sullied the lustre of his 
glory. 

“It is the peculiar felicity of the great man I am speaking of, 
to have presided very near twenty years, and to have shone with a 
splendour that has risen superior to faction, and that has subdued 
envy. 

“ T did not intend to have said, I should not have said so much 
on this occasicn, but that in this situation with all that hear me, 


* Holliday, p. 105. 


cc 4 


391 


CHAP. 
XX XITI. 


VOR eal Galore 


392 


CHAP. 
XXXIII. 


ee 


A.D. 1756. 


REIGN OF GEORGE II. 


what I say must carry the weight of testimony rather than appear 
the voice of panegyric. 

“ For you, sir, you have given great pledges to your country ; 
and large as the expectations of the public are concerning you, I 
dare say you will answer them. 

‘“‘ For the Society I shall always think myself honored by every 
mark of their esteem, affection, and friendship, and shall desire 
the continuance of it no longer than while I remain zealous for 
the constitution of this country and a friend to the interests of 
virtue.” 

Mr. Holliday, worked up to enthusiasm by the recollection 
of the scene he had witnessed, “ bears ample testimony to the 
tribute of applause, to the general joy and the marked ap- 
probation of the audience.”* On this occasion Mr. Serjeant 
Murray gave a grand dinner in Lincoln’s Inn, rivalling the 
splendour of the olden time, to many of the nobility as well 
as to the chiefs of the law.f 


* Page 106. 

+ The following is the Order issued by the Benchers for regulating the 
solemnity : — 

« At an Extraordinary Council, held the 2d day of November, 1756. 

“ Ordered—That the gates leading to Portugal Street, Chichester Rents, and 
Bishop’s Court from Lincoln’s Inn be shutt on Monday next, from ten in the 
morning for the remaining part of that day. 

“ That the two great gates be sbutt from ten in the morning for the remainder 
part of that day; and that six porters and two constables attend at each of those 
gates in order to lett in the nobility, judges, and other company who are to 
dine at the Serjeant’s feast, as likewise to lett in the memhers of the Society and 
their friends, 

“That the passage to the Hall be boarded up, and doors made as usual to lett 
the company into the Hall; and that two porters and a constable attend at 
each of those doors. 

«That the garden gates be shutt all that day. 

«“ That the gardener, his man, and two porters do patrole the terras walk, to 
prevent any person from coming over the wall. 

“ That Mr. Johnson, the steward to this Society, do hire twelve extraordinary 
porters, or such number of porters as shall be necessary to do the necessary duty 
on that day; and he do appoint the several porters to their several stations. 

“That great care be taken that there be no disturbance or riott committed in 
the Inn on that day. 

« That in case the porters or other servants do not keep good order, or are 
negligent in doing of their dutys, that Mr. Johnson do report their misbehaviour 
at the next couneil. é 

“That the cooks (Messrs. Davis and Cartwright) who are to dress the Ser- 
jeant’s dinner have the use of the kitchen and all the offices belonging thereto, 
together with the furniture of the same; and that Mr. Johnson do intimate to 
them that they are to provide such chairs for the company as shall be wanting.” 


LIFE OF LORD MANSFIELD. 


CHAPTER XXXIV. 


VIEW OF LORD MANSFIELD’S JUDICIAL CHARACTER AND OF HIS 
DECISIONS. 


WE are now to behold Lord Mansfield a venerable magis- 
trate, clothed in ermine, seated on his tribunal, determining 
the most important rights, and adjudicating upon the lives of 
his fellow citizens. He presided in the Court of King’s 
Bench for the first time on Thursday the 11th of November, 
1756. Modern usage does not permit a judge to deliver an 
inaugural address, or we should have had from him a striking 
enumeration of the duties imposed upon the person filling 
this high office, and a masterly exposition of the manner in 
which they ought to be performed. Although he did not 
then delineate in the abstract the beau ideal of a perfect 
judge, he afterwards proved to the world by his own practice 
that it had been long familiar to his mind. 

I feel the extreme difficulty of an attempt to present to 
my readers a view of Lord Mansfield’s judicial character and 
of his decisions. I am disheartened by the utter failure of 
my predecessors*; but I must proceed at all risks, or this 
memoir would be compared to a life of Bacon omitting all 
mention of his philosophy, or of Marlborough entirely passing 
over his campaigns. While the ensuing chapter may be en- 
tirely skipt by those who take interest only in personal 
anecdotes and party contests, it may be perused a second 
time by others who, knowing that the history of a country 
cannot be well understood without the study of its jurispru- 
dence, are desirous of learning minutely what great magistrates 

* No reader, professional or non professional, can possibly get through the 
voluminous account of Lord Mansfield’s judgments to be found in Holliday and 
Evans ; and it has not suited the plan of any of the able writers who have given 


a sketch of Lord Mansfield’s life to examine them, except in avery cursory 
manner, 


393 


CHAP. 
XXXIV. 





A.D. 1756. 
He takes 
his seat in 
the Court 
of King’s 
Bench, 


Necessity 
for a re- 
view of 
Lord Mans- 
field’s judg- 
ments. 


394 


CHAP. 


XXXIV. 


A.D. 1756. 


Was he a 
great 
judge ? 


REIGN OF GEORGE Ii. 


actually did in administering justice to individuals and in aim- 
ing to improve the institutions over which they presided.* 
Perhaps I ought to begin with considering the question 
“* whether Lord Mansfield was indeed a great magistrate?” I 
remember the time when it was fashionable in Westminster 
Hall to mention his name with a sneer. One might have 
supposed that he was chiefly memorable for having tried to 
introduce into the Common Law some “ equitable doctrines ” 
which had been rejected, and that, having long imposed upon 
the world by his plausibility, he was at last discovered to 
have been ignorant and shallow. English lawyers in those 
days chose to take their opinions of him from two men, deeply 
versed in their profession, but entirely devoid of all other 
learning — who not only had no taste for his liberal acquire- 
ments, but actually bore him a deep personal grudge. Lord 
Eldon, having begun to practise in the Court of King’s 
Bench under Lord Mansfield, took it into his head that the 
Chief Justice set his face against all except those who had 
been educated at Westminster and Christ Church; and he 
left the court with disgust, ever loudly and deeply cursing 
the supposed author of his early disappointment. Again, 
Lord Kenyon with some reason mortally hated his prede- 
cessor, who had strenuously opposed his appointment, be- 
cause he did not wish to see in the seat of Chief Justice of 
England one who did not know the characters of the Greek 
language, and of Latin knew only some scraps to be mis- 
quoted. Their hostility to the memory of Mansfield was 
sharpened by their common dislike of Buller, who, reve- 
rencing him to idolatry, was in the habit of drawing offen- 
sive comparisons between him and his detractors. The 
influence of the Lord Chancellor and of the Chief Justice 
was much greater than that of the disappointed puisne who 
had sought refuge in the obscurity of the Common Pleas, 
and those who were desirous of having “the ear of the 


* Gibbon’s masterly sketch of the Roman Civil Law (Decline and Fall, 
ch. xliv.) is one of the most interesting parts of his great work. But I am 
afraid that I shall be supposed as much enamoured of my craft as was of bis the 
old minstrel who 
“ Poured to lords and ladies gay 

The unpremeditated lay.” 


LIFE OF LORD MANSFIELD. 


Court” on either side of the Hall knew that they could in 
no way recommend themselves to favour more effectually 
than by talking of “the loose notions which had lately pre- 
vailed in certain quarters, and which were in the course of 
being happily corrected.” The juniors took their tone from 
the leaders, and in the debating clubs of students in the Inns 
of Court the speakers were inflamed by a pious desire to 
restore the Common Law to its ancient simplicity. 

But these delusions are no more; and Mansfield may now 
be compared to the unclouded majesty of Mont Blane when 
the mists which for a time obscured his summit have passed 
away. 

There are a few undeniable facts, which are quite con- 
clusive to prove that he enjoyed an unparalleled ascendancy, 
and that this ascendancy was well deserved. Although he 
presided above thirty years in the Court of King’s Bench, 
there were in all that time only two cases in which his 
opinion was not unanimously adopted by his brethren who 
sat on the bench with him. Yet they were men of deep 
learning and entire independence of mind. He found there 
Sir Thomas Denison, Sir Michael Foster, and Sir John 
Eardly Wilmot, who was afterwards Chief Justice of the 
Common Pleas, and refused the great seal. They were 
succeeded by Sir Joseph Yates*; Sir Richard Aston+, who 
had been Chief Justice of the Common Pleas in Ireland; Sir 
James Hewittt, afterwards Lord Chancellor of Ireland, and 
a peer by the title of Lord Lifford; Sir Edward Willes§; 
Sir William Blackstone ||; Sir William Henry Ashurst |; Sir 
Nash Grose; and Sir Edward Buller.** Again, of the many 
thousand judgments which Lord Mansfield pronounced during 
the third part of a century, two only were reversed. The 
compliment to Chancellors that their decrees were affirmed 
amounts to very little, for the only appeal is to the House of 
Lords, where the same person presides, so that it may be 
considered ab eodem ad eundem. But a writ of error then 
lay from the King’s Bench either to the Exchequer Chamber, 


* Jan. 24, 1763. Mpa pil ba1765. t Nov. 1. 1766. 
§ Jan, 27. 1768. || April 3. 1770. 4 April 10. 1770. 
q Feb. 9. 1777: ** April 6. 1778, 


395 


CHAP: 
XXXIV. 


A.D. 1756. 


His un- 
paralleled 
ascendancy 
in West- 
minster 


Hall. 


396 


CHAP. 
XXXIV. 


A.D. 1756. 


~REIGN OF GEORGE II. 


constituted of the Judges of the Common Pleas and Exche- 
quer, or to the House of Lords, to be heard before the Lord 
Chancellor and all the Judges of England, without any pre- 
disposition to affirm.* What will appear to my professional 
brethren a more striking fact still, strongly evincing the 
confidence reposed in his judicial candour and ability by such 
men as Dunning and Erskine, opposed to him in politics, 
who practised before him, —in all his time there never was a 
bill of exceptions tendered to his direction; the counsel against 
whom he decided either acquiescing in his ruling, or being 
perfectly satisfied that the question would afterwards be 
fairly brought before the Court and satisfactorily determined 
on a motion for a new trial.t I must likewise observe that 
the whole community of England, from their first experience 
of him on the bench, with the exception of occasional dis- 
plays of party hostility, concurred in doing homage to his 
extraordinary merits as a judge. Crowds eagerly attended to 
listen to him when he was expected to pronounce judgment 
in a case of importance. To gratify public curiosity, the 
unknown practice began of reporting in the newspapers his 
addresses to juries; and all suitors, sanguine in their belief of 
being entitled to succeed, brought their causes to be tried 
before him, so that the business of the King’s Bench increased 
amazingly, while that of the other courts of common law 


* At first starting, the holder of the great seal (Lord Keeper Henley) had 
no voice in the House of Lords; but when created Lord Northington he might 
have revenged himself for his decrees which had been upset with Lord Mans- 
field’s concurrence. Then followed Lord Camden, a Whig Chancellor; and, 
although the two following Chancellors, Lord Bathurst and Lord Thurlow, 
were Tories, they bore no peculiar personal good-will to the Chief Justice of 
the King’s Bench. 

+ When I was at the bar, I knew a learned Serjeant who never went into 
court without several blank bills of exceptions in his bag, or rather cartouche- 
box, to be filled up and fired off at the Chief Justice in the course of the morn- 
ing. I should state, for the information of my unlearned readers (or the lay 
gents), that a bill of exceptions is given by the statute of Westminster passed in 
the reign of Edward I., and is an admirable check on the rashness and men- 
dacity of judges; for it empowers the parties to put down in writing the exact 
terms in which the judge who tries the cause has laid down the law, and sub- 
jects him to an action if he does not acknowledge it by his seal. It then goes, 
by writ of error, before a superior tribunal, where his ruling is reconsidered, 
and may be either affirmed or reversed. On a motion for a new trial, the judge, 
at his diseretion, states verbally how he laid down the law, no averment being 
allowed against his statement; and the question cannot be carried before a 
higher court, 


LIFE OF LORD MANSFIELD. 


dwindled away almost to nothing. He was regarded, if 
possible, with still greater veneration in his native country, 
where they were not only proud of him for adding new lustre 
to the name of Scotsman, but grateful for the admirable 
manner in which, as a law lord in the House of Peers, he 
revised and corrected the decisions of their supreme court, 
giving new consistency and certainty both to their feudal and 
commercial code. Even the learned on the continent of 
Europe, who had hitherto looked upon English lawyers as 
very contracted in their views of jurisprudence, and had 
never regarded the decisions of our courts as settling any 
international question, acknowledged that a great jurist had 
at last been raised up among us, and they placed his bust by 
the side of Grotius and D’Aguesseau. In his own lifetime, 
and after he had only a few years worn his ermine, he 
acquired the designation by which he was afterwards known, 
and by which he will be called when, five hundred years 
hence, his tomb is shown in Westminster Abbey — that of 
“THE GREAT LORD MANSFIELD.” 

Therefore, notwithstanding the successful efforts of a few 
narrow-minded and envious persons to disparage him soon 
after his death, I think I must be justified in giving faith 
to the unanimous opinion of his contemporaries in his favour, 
and I may go on with confidence to explain by what means 
he gained the high reputation which he enjoyed. 

The moving power which worked such marvellous effects 
was his earnest desire worthily to discharge the duties of his 
office, that he might thereby serve his country and make his 
own name be remembered and honoured.* Men even of 
great talents and acquirements have felt their ambition 
satisfied simply by being placed in a high judicial office, the 
dignity and emoluments of which they were entitled to hold 
for life, unless there should be an address to the Crown by 

* He was not merely pleased at the moment with the occupation of trying 
causes, as some are with hunting and others with angling. When M. Cottu, 
the French advocate, went the Northern Circuit, and witnessed the ease and 
delight with which Mr. Justice Bayley got through his work, he exclaimed, 
“ J] s'amuse a juger;” and Judge Buller used to say, somewhat irreverently, 


that “ his idea of Heaven was to sit at Nisi Prius all day, and play at whist all 
night,” 


397 


CHAE. 
XXXIV. 


A.D. 1756. 


His pas- 
sionate 
love of the 
duties of 
a judge. 


Reforms of 
procedure 
introduced 
by him, 


REIGN OF GEORGE II. 


the two Houses of Parliament for their removal. These 
considered merely how they could get on with least trouble 
to themselves, — taking care to avoid every appearance of 
recklessness which might cause open scandal and create a 
danger of public censure. Mansfield, with little enthusiasm 
in his nature, had one ruling passion, which did not work by 
fits, but was strong, constant, and insatiable. On the day of 
his inauguration as Chief Justice, instead of thinking that 
he had won the prize of life, he considered himself as only 
starting in the race. 

My readers are already acquainted with some of the re- 
quisites he possessed for this noble undertaking ; — his quick- 
ness of perception —his logical understanding —his scientific 
acquaintance with jurisprudence—his great experience in busi- 
ness from having been nearly twenty years at the head of his 
profession— his resoluteness of purpose —and his unwearied 
power of application. All these might have been insufficient, 
but he quickly showed that, seated on his tribunal, he was 
patient, courteous, firm, decided in his opinions, possessed of 
unexampled powers of despatch without ever appearing to be 
in a hurry, capable of explaining his judgments with ad- 
mirable precision and perspicuity, and not only unswayed by 
awe of power or love of popularity, but free from the be- 
setting sin of being unduly under the influence of counsel 
either from favour or from fear. 

He began with certain reforms in the practice of his court, 
which I must mention as they materially contributed to his 
success, although their importance cannot be properly per- 
ceived by the uninitiated. His first bold step was to rescue 
the bar from the monopoly of the leaders. Day by day, 
during the term, each counsel when called upon had been 
accustomed to make as many motions successively and con- 
tinuously as he pleased. The consequence was, that by the 
time the Attorney and Solicitor General, and two or three 
other Dons, had exhausted their motions, the hour had 
arrived for the adjournment; and as the counsel of highest 
rank was again called to at the sitting of the court next 
morning, juniors had no opportunity of making any mo- 
tions with which they might be intrusted till the last day 


LIFE OF LORD MANSFIELD. 


of term, when it was usual, as a fruitless compliment to them, 
to begin with the back row—after the time had passed by 
when their motions could be made with any benefit to their 
clients. The consequence was, that young men of promise 
were unduly depressed, and more briefs were brought to 
the leaders than there was time for them to read, even 
had they been toiling all night at their chambers instead 
of sitting up in the House of Commons absorbed in party 
strugeles. Thus the interests of the suitors were in danger 
of being neglected, and the judges did not receive the fair 
assistance from the bar in coming to a right conclusion which 
they were entitled to expect. To remedy these evils, a rule 
was made that the counsel should only make one motion 
a-piece in rotation; and that if by chance the court rose 
before the whole bar had been gone through, the motion 
should begin next morning with him whose turn it was to 
move at the adjournment. The business was thus both more 
equally distributed and much better done. 

A bad practice had prevailed, that almost all cases turning 
upon questions of law which came before the judges sitting 
in banco were argued two or three and even as often as four 
times over in successive terms, although not attended with 
any real difficulty—a further argument being ordered, almost 
as a matter of course, at the request of the party who appre- 
hended that the inclination of the court was against him. 
Lord Mansfield always refused a second argument, unless 
the court entertained serious doubts, which were likely to be 
better cleared up by further discussion at the bar than by 
an immediate examination of the authorities and by private 
deliberation. 

The custom likewise had been to abstain from deciding at 
the close of the argument, —there hardly ever being a judg- 
ment entered without several entries of curia advisari vult,— 
whereby, not only was expense increased and justice delayed, 
but the judges had often forgotten the reasons and autho- 
rities brought forward at the bar before publicly declaring 
their opinion. In Raynard v. Chace*, which was argued for 


SeBurr.. voloL <p; 1. 


349 


CHAP. 
XXXIV. 


A;D. Lid SiGe 


400 


CHAP. 
XXXIV. 


A.D. 1756. 


REIGN OF GEORGE II. 


the first time the day after Lord Mansfield took his seat on 
the bench, the counsel and the attorneys, who expected as a 
matter of course that there would be divers hearings and long 
consultations before the Judges would venture to pronounce 
their decision, were astounded to hear the new Chief Justice 
say that “the Court, having no doubts on the subject, con- 
sidered itself bound as well to spare the parties the expense 
and anxiety of further discussion, as to terminate the suspense 
of others who might be interested in the question to be de- 
cided, and would accordingly proceed to give judgment at 
once.” But he was cautious as well as ready, and, wherever 
the occasion required, he was eager to receive any new lights 
which could be thrown on obscure points of law by the re- 
searches and the ingenuity of counsel. 

During Lord Mansfield’s time, an evil was remedied which 
I am sorry to say had been revived before I was called to the 
bar, and, I am afraid, still inveterately exists—the delay 
experienced in preparing a special case or statement of the 
facts in evidence on a trial before a jury, when it is found 
that the rights of the parties depend upon a question of law, 
and it is agreed that these facts shall be stated for the opinion 
of the judges. When such a statement is afterwards to be 
drawn up by the counsel on opposite sides — from their 
multiplied engagements, or from their indolence and love of 
procrastination— and still more from their pugnacity and 
excessive zeal to benefit and please their clients, — great 
danger arises of long delays and vexatious discussions before 
a final hearing can take place. Lord Mansfield himself dic- 
tated the statement in open court, and it was signed by the 
counsel before the jury were discharged. He further ordered 
that the case should be invariably entered for argument 
within the first four days of the ensuing term, so that judg- 
ment was sure to be pronounced within a few months from 
the time when the action was originally commenced. 

He also made a general order that no cases should be 
postponed, even with the consent of the parties, without the 
express authority of the court; and cases so postponed were 
appointed to come on peremptorily at the beginning of the 
following term, 


LIFE OF LORD MANSFIELD. 


By these regulations, the heavy arrears which he found on 
taking his seat were soon cleared away; and afterwards, 
during the whole period of his Chief Justiceship, at the end 
of every term every case had been disposed of that was ripe 
for being heard and decided. 

But there was no complaint of precipitation or affected 
despatch ; and, to show that the satisfactory administration of 
justice was the only object in view, instead of determining 
cases sent to the Court of King’s Bench from the Court of 
Chancery by a written answer, simply saying aye or no, called 
a “ certificate,” Lord Mansfield introduced and continued the 
practice of giving an elaborate judgment on these occasions 
vivd voce, fully explaining the reasons and authorities on which 
his opinion was founded.* 

I ought likewise to mention the improvements he intro- 
duced in the trial of causes at Nisi Prius. Hitherto it had been 
usual for all the counsel on each side, if they were so disposed, 
to address the jury, and much irregularity prevailed in ex- 
amining and cross-examining the witnesses. By his care the 
system which we now follow was gradually matured; and, 
although liable to some objections, it is probably as well 
adapted as any that could be devised for the fair investigation 
of truth, as well as for celerity. According to this, the junior 
counsel for the plaintiff having “ opened the pleadings,” or 
stated the issues or questions of fact raised by the record for 
decision, the leading counsel for the plaintiff alone addresses 
the jury: the plaintiff's evidence follows: the defendant’s 
leading counsel then addresses the jury, and, if he gives no 
evidence, the debates at the bar here close; but if there be 
evidence given for the defendant, the plaintiff’s leading coun- 
sel addresses the jury by way of reply. The judge then 
sums up, and the jury pronounce the verdict. Lord Mans- 
field hesitated long about making the right to reply depend 
upon the giving of evidence by the defendant, as thereby, to 


* Lord Mansfield: — “I found it a custom in cases sent by the Court of 
Chancery for our opinion, to certify it privately to the Lord Chancellor in 
writing, without declaring in this court either the opinion itself or the reasons 
upon which it is grounded. But I think the custom wrong as well as unsatis- 
factory to the bar.” (Cowp. 34.) Lord Kenyon returned to it, however, 
because Lord Eldon was disposed to carp and jeer at his reasons. 


VOL. II. DD 


401 


CHAP. 
XXXIV. 


A.D. 1756 
—1787. 


402 


CHAP. 
XXXIV. 


A.D. 1756 
— 1787. 


TImprove- 
ments, 
founded on 
principle, 
which he 
contem- 


plated. 


“LIFE OF LORD MANSFIELD. 


avoid a reply, important evidence is sometimes kept back, and 
inconvenience follows from the defendant’s counsel having the 
privilege of speaking without any answer from his antagonist; 
but his masterly superintendence and great authority kept 
everything straight, and, while he presided, trial by jury in 
civil cases, which in theory appears so absurd, and which 
answers so badly in Scotland and other countries in which it 
is not understood, seemed a perfect invention for the adminis- 
tration of justice. 

These are little more than matters of procedure, which, 
however wisely devised, could not of themselves have deserved 
any lasting praise. I now come to the principles which 
guided him as a judge, and which have made his name im- 
mortal. 

He formed avery low, and I am afraid a very just, estimate 
of the Common Law of England which he was to administer. 
This system was not at all badly adapted to the condition of 
England in the Norman and early Plantagenet reigns, when 
it sprang up, —land being then the only property worth con- 
sidering, and the wants of society only requiring rules to be 
laid down by public authority for ascertaining the different 
rights and interests arising out of land, and determining how 
they should be enjoyed, alienated, and transmitted from one 
generation to another. In the reign of George II., England 
had grown into the greatest manufacturing and commercial 
country in the world, while her jurisprudence had by no 
means been expanded or developed in the same proportion. 
The legislature had literally done nothing to supply the in- 
sufficiency of feudal law to regulate the concerns of a trading 
population; and the Common Law judges had, generally 
speaking, been too unenlightened and too timorous to be of 
much service in improving our code by judicial decisions. 
Hence, when questions necessarily arose respecting the 
buying and selling of goods, — respecting the aftreightment 
of ships,— respecting marine insurances, — and respect- 
ing bills of exchange and promissory notes, no one knew 
how they were to be determined. Not a treatise had 
been published upon any of these subjects, and no cases 
respecting them were to be found in our books of reports, — 





LIFE OF LORD MANSFIELD. 


which swarmed with decisions about lords and villeins, — 
about marshalling the champions upon the trial of a writ o 


right by battle, —and about the customs of manors, whereby , ,. 1756 


403 


CHAP. 


fs XXXIV. 


eee 


an unchaste widow might save the forfeiture of her dower by —!787. , 


riding on a black ram and in plain language confessing her 
offence. Lord Hardwicke had done much to improve and 
systematise Equity — but proceedings were still carried on 
in the courts of Common Law much in the same style as in 
the days of Sir Robert Tresilian and Sir William Gascoigne. 
Mercantile questions were so ignorantly treated when they 
came into Westminster Hall, that they were usually settled 
by private arbitration among the merchants themselves. If 
an action turning upon a mercantile question was brought 
in a court of law, the judge submitted it to the jury, who 
determined it according to their own notions of what was 
fair, and no general rule was laid down which could after- 
wards be referred to for the purpose of settling similar 
disputes. 

The greatest uncertainty prevailed even as to the territories 
over which the jurisdiction of the Common Law extended. 
The King of this country, from having no dominions annexed 
to his crown out of England, except Ireland, the Isle of Man, 
and the Islands in the English Channel —a remnant of the 
duchy of Normandy, —had become master of extensive colonies 
in every quarter of the globe, so that the sun never set upon 
his empire. Some of these colonies had been settled by 
voluntary emigration, without any charter from the Crown; 
some had been granted by the Crown to be ruled under 
proprietary governments; some had received charters from 
the Crown constituting legislative assemblies ; some had been 
ceded by foreign states under conditions as to the observance 
of existing laws; and some were unconditional conquests. 
Down to Lord Mansfield’s time, no general principles had been 
established respecting the laws to be administered in colonies 
so variously circumstanced, or respecting the manner in which 
these laws might be altered. 

He saw the noble field that lay before him, and he resolved 
to reap the rich harvest of glory which it presented to him. 
Instead of proceeding by legislation, and attempting to codify 


DD 2 


Panegyric 
upon Lord 
Mansfield 

by Buller. 





LIFE OF LORD MANSFIELD. 


as the French had done very successfully in the Coustwmier 
de Paris, and the Ordinance de la Marine, he wisely thought 
it more according to the genius of our institutions to in- 
troduce his improvements gradually by way of judicial deci- 
sion. As respected commerce, there were no vicious rules 
to be overturned, — he had only to consider what was just, 
expedient, and sanctioned by the experience of nations 
farther advanced in the science of jurisprudence. His plan 
seems to have been to avail himself, as often as oppor- 
tunity admitted, of his ample stores of knowledge, ac- — 
quired from his study of the Roman civil law, and of the 
juridical writers produced in modern times by France, Ger- 
many, Holland, and Italy,—not only in doing justice to the 
parties litigating before him, but in settling with precision 
and upon sound principles a general rule, afterwards to be 
quoted and recognised as governing all similar cases. Being 
still in the prime of life, with a vigorous constitution, he no 
doubt fondly hoped that he might live to see these decisions, 
embracing the whole scope of commercial transactions, col- 
lected and methodised into a system which might bear his 
name. When he had ceased to preside in the Court of 
King’s Bench, and had retired to enjoy the retrospect of his 
labours, he read the following just eulogy bestowed upon 
them by Mr. Justice Buller, in giving judgment in the im- 
portant case of Lickbarrow v. Mason, respecting the eftect of 
the indorsement of a bill of lading : — 

“« Within these thirty years the commercial law of this country 
has taken a very different turn from what it did before. Lord 
Hardwicke himself was proceeding with great caution, not esta- 
blishing any general principle, but decreeing on all the circum- 
stances put together. Before that period we find that, in courts 
of law, all the evidence in mercantile cases was thrown together ; 
they were left generally to a jury; and they produced no general 
principle. From that time, we all know, the great study has been 
to find some certain general principle, which shall be known to 
all mankind, not only to rule the particular case then under con- 
sideration, but to serve as a guide for the future. Most of us 
have heard these principles stated, reasoned upon, enlarged, and 
explained, till we have been lost in admiration at the strength and 
stretch of the understanding. And I should be very sorry to find 


LIFE OF LORD MANSFIELD. 


myself under a necessity of differing from any case upon this sub- 
ject which has been decided by Lord Mansfield, who may be truly 
said to be the founder of the commercial law of this country.” * 

We shall see that he was equally successful in distinguish- 
ing the laws and legislation applicable to the different classes 
of colonies under the Crown, and that he improved our juris- 
prudence wherever the improvement of it, by judicial decision, 
was practicable ; but that he failed, with some discredit, when 
he tried to carry his empire beyond its just limits, and at- 
tacked rules by which the descent of landed property in this 
country had been governed for centuries, and which, if they 
were inexpedient, could only be overturned by the power of 
parliament. 

Reserving the political cases tried before Lord Mansfield 
to be introduced chronologically in the subsequent part of 
this memoir, I wish now to lay before my readers some 
specimens of his judgments in determining private rights. 
But here I am embarrassed by the riches which surround 
me. I have often had to lament that hardly a fragment re- 
mains to enable us to appreciate the learning and genius of 
judges celebrated by their contemporaries. Lord Mansfield 
is handed down to us by Burrow, Douglas, Cowper, Durn- 
ford, and East, the very best law reporters that have ever 
appeared in England; and I am bewildered when I try to 
make a selection from their voluminous works. 

I naturally begin with the law of InsurANCE, — almost 
his own creation; and I might copy the whole ofa copious 
treatise on the subject by Mr. Justice Park, which is com- 
posed almost entirely of his decisions and dicta. But the bulk 
of my readers, being neither assurers nor assured, — nor 
caring very much about policies valued or open,—nor about 
payment or return of premium, — nor about losses total or 
partial,—nor about perils of the seas, capture, or barratry,— 





* 2 T. Rep. 68. 

t This gentleman, when made an Irish peer by the title of Lord Glen- 
bervie, ascribed his rise to the reputation he had acquired by reporting Lord 
Mansfield’s decisions; and took for his motto, “ Per varios casus.” This is 
rather better than that adopted by a learned acquaintance of mine on setting up 
his carriage, “ Causes produce Effects,” — which is pretty much in the style of 
“ Quid rides,” for the tobacconist; or “ Quack, Quack,” for the doctor whose 
crest was a duck. 


Dees 


405 


CHAP. 
XXXIV. 


A.n. 1756 
—1787. 


His treat- 
ment of the 
law of in- 
surance, 


406 


CHAP. 
XXXIV. 


A.D. 1756 


—1787. 


LIFE OF LORD MANSFIELD. 


nor about warranties, convoys, deviation, or abandonment,— 
will be contented with a taste of Lord Mansfield’s reasoning 
upon the duty of the party effecting a policy of insurance to 
disclose the dangers to which the subject-matter insured may 
be exposed. — The governor of Fort Marlborough, in the 
island of Sumatra, had insured the place against capture for 
a year, — and it was taken by Count D’Estaigne within the 
year, after a very gallant defence. The underwriters re- 
fused to pay, on the ground that there had not been any 
disclosure to them of the weakness of the fort, or the pro- 
bability of its being attacked by the French: — 

Lord Mansfield: “Tnsurance is a contract upon speculation. 
The special facts upon which the risk is to be computed lie most 
commonly in the knowledge of the assured only. The under- 
writers trust to his statement, and proceed upon confidence that 
he does not keep back any circumstance which they have not the 
means of knowing. The keeping back such a circumstance is 
considered a fraud, and avoids the policy, although the suppression 
happen by mistake; because the risk is really different from that 
which they intended to take upon themselves. The policy would 
equally be void against the underwriters if they concealed anything 
exclusively within their knowledge —as, if ‘they had learned by 
private information that the ship to be insured had arrived safely 
at her port of destination, — and they might be compelled to 
refund the premium which they had fraudulently received. This 
governing principle is applicable to all contracts. Good faith 
forbids either party, by concealment of what he alone knows, to 
draw the other into a bargain which he would certainly avoid if 
their information were equal. But either party may innocently 
be silent as to matters upon which both may equally exercise their 
judgment. <Aliud est celare, aliud tacere : neque enim id est celare 
quicquid reticeas ; sed cum quod tu scias, id ignorare, emolumenti 
tui causa, velis eos quorum intersit id scire.* This definition of 
concealment, restrained to the efficient motives and precise subject 
of any contract, will generally hold to make it void in favour of 
the party misled by his ignorance of the thing concealed. There 
are many matters as to which the assured may be innocently silent. 
He need not mention what the underwriters know, or ought to 
know, or may be supposed to form conjectures upon for themselves ; 
as, the difficulties of the voyage, the variation of the seasons, or the 


wacic, de Off, ic, eats: 


LIFE OF LORD MANSFIELD. 


probability of lightning, hurricanes, and earthquakes. So the 
underwriters are bound to know every cause which may occasion 
political perils, — from the rupture of treaties and from the various 
operations of war, as well as the probability of safety from the 
continuance or return of peace, or from the imbecility of the enemy 
through the weakness of their councils or their want of physical 
resources. Men argue differently from natural phenomena and 
political appearances ; they have different degrees of knowledge 
and different capacities. But the means of information and form- 
ing a correct opinion are open to both; so far each professes to 
act from his own skill and sagacity, and, therefore, neither need 
communicate to the other. The reason of the rule which requires 
disclosure is to prevent frauds, and to encourage good faith ; it is 
confined to such facts as vary the nature of the contract, which 
one privately knows, and the other is ignorant of and has no reason 
to suspect. The question, therefore, must always be whether 
there was, under all the circumstances, at the time the policy was 
underwritten, a fair statement, or a concealment, either fraudulent 
or undesigned, varying materially the risk understood to be run.” * 


He then went on to apply these principles, so lucidly 
explained, to the facts of the case; and the verdict for the 
plaintiff was confirmed. f 

Likewise with regard to bills of exchange and promissory 
notes, Lord Mansfield first promulgated many rules that now 
appear to us to be as certain as those which guide the planets 
in their orbits. For example, it was till then uncertain whether 


* Qu. how far an objection might not have been made to the validity of this 
insurance, on the ground that a governor ought not to be allowed to lessen his 
motives to do his duty in defending, to the last extremity, the place which he 
commands ? 

+ Carter v. Boehm, 3 Burr. 1905.; Sir W. Bl. 591.—Lord Mansfield infi- 
nitely improved the procedure in actions on marine policies, by introducing what 
is called the “ Consolidation Rule,” by which he obviated much vexation, delay, 
and expense, and brought the real question between the underwriters and the 
assured to a speedy decision on its real merits. The mysteries of this rule may 
not be disclosed to the profane. — He likewise did much for the improvement of 
commercial law in this country by rearing a body of special jurymen at Guildhall, 
who were generally returned on all commercial causes to be tried there. He 
was on terms of the most familiar intercourse with them ; not only conversing 
freely with them in court, but inviting them to dine with him. From them 
he learned the usages of trade, and in return he took great pains in explaining 
to them the principles of jurisprudence by which they were to be guided. 
Several of these gentlemen survived when I began to attend Guildhall as a 
student, and were designated and honoured as “ Lord Mansfield’s jurymen.” 
One, in particular, I remember, Mr. Edward Vaux, who always wore a cocked 
hat, and had almost as much authority as the Lord Chief Justice himself. 


pp 4 


407 


CHAP. 
XXXIV. 





A.D. 1756 
—1787. 


Bills of 


exchange. 


408 


CHAP. 
XXXIV. 





A.D. 1756 
—1787. 


LIFE OF LORD MANSFIELD. 


the second indorsee of a bill of exchange could sue his imme- 
diate indorser without having previously demanded payment 
from the drawer ; and it was said three Chief Justices had 
ruled the point one way at Nisi Prius, and as many Chief 
Justices had ruled it the other way : — 


Lord Mansfield: “I cannot persuade myself that there has 
really been such a variety of opinions upon this question. But, 
however that may be, it must now be determined by the nature of 
the transaction, general convenience, and mercantile usage. A 
bill of exchange is an order on the drawee, who has, or is supposed 
to have, effects of the drawer in his hands to pay to the holder. 
When the drawee has accepted, he is the principal debtor, and due 
diligence against him must be used before the other parties, who 
are his sureties, can be held liable. Therefore, if the acceptor 
is not called upon when the bill is due, the drawer and indorsers 
are discharged. When the bill of exchange is indorsed by the 
person to whom it is made payable, as between indorser and in- 
dorsee, it is a new bill of exchange, and the indorser stands in the 
place of the drawer. ‘The indorsee does not trust to the credit of 
the original drawer; he does not know whether such a person 
exists, or where he lives, or whether his name may have been 
forged. The indorser is Ats drawer, and the person to whom he 
originally trusted in case the drawee should not pay the money. 
We are, therefore, all of opinion that, to entitle the indorsee to 
bring an action against the indorser, upon failure of payment by 
the drawee, it is not necessary to make any demand on, or inquiry 
after, the first drawer.” 


He goes on to explain (which seems then to have been 
necessary ), for the information of his brother judges, as well 
as of “the students,” that the maker of a promissory note 
is in the same situation as the acceptor of a bill of exchange, 
and that in suing the indorser of the note it is necessary to 
allege and to prove a demand on the maker, fearing it might 
be supposed that the maker of a promissory note is not the 
principal debtor, and that, without any recourse against him, 
the indorser may at once be compelled to pay. * 


* Heylyn vy. Adamson, 2 Burr. 669. Lord Mansfield had likewise to deter- 
m ine that the indorser of a bill of exchange is discharged if he receives no no- 
tice of there having been a refusal to accept by the drawee (Blesard v. Herst, 
6 Burr, 2670.); and that reasonable time for giving notice of the dishonour of a 
bill or note is to be determined by the Court as matter of law, and is not to be 


LIFE OF LORD MANSFIELD. 


There is another contract of infinite importance to a 
maritime people, the incidents of which had received little 
illustration in England since the compilation of the “ Laws 
of Oleron,” in the reign of Richard I.—I mean that between 
shipowners and merchants for the hiring of ships and car- 
riage of goods. I shall notice only one of very many cases 
decided on this subject by Lord Mansfield. Till his time, 
the rights and liabilities of these parties had remained un- 
decided upon the contingency, not unlikely to arise, of the 
ship being wrecked during the voyage, and the goods being 
saved and delivered to the consignee at an intermediate port. 
Lord Mansfield settled that freight is due pro ratéd itineris— 
in proportion to the part of the voyage performed — show- 
ing that this is the rule which prevails among foreign 
nations, and observing “ Non erit alia lex Rome, alia Athenis ; 
alia nune, alia posthac; sed, et apud omnes gentes et omni 
tempore, una eademque lex obtinebit.” * 

Lord Mansfield’s familiarity with the general principles 
of ethics, which he had acquired by an attentive study of the 
philosophical works of Cicero, availed him on all occasions 
when he had to determine on the proper construction and 
just fulfilment of contracts. The question having arisen, for 
the first time, whether the seller of goods by auction, with 
the declared condition that they shall be sold to “ the highest 
bidder,” may employ a “ puffer,’— an agent to raise the 
price by bidding, — he thus expressed himself : 

“The matter in dispute is of small pecuniary value, but it in- 
volves principles of the highest importance to society. The basis 
of all dealings ought to be good faith ; so more especially in these 
transactions, where the public are brought together upon a con- 
fidence that the articles set up to sale will be disposed of to the 
highest real bidder. That can never be the case if the owner may 
secretly enhance the price by a person employed for that purpose. 
Yet tricks and practices of this kind daily increase, and grow so 
frequent that good men give into the ways of the bad, and become 
left to the jury as matter of fact, they being governed by the circumstances of 


each particular case. (Tindal v. Brown, 1 Term. Rep. 167.) It seems strange 


to us how the world could go on when such questions, of hourly occurrence, 
were unsettled. 


* Luke vy. Lyde, 2 Burrow, 883. 


409 


CHAP: 
XXXIV. 


A.D. 1756 
—1787. 
Right to 
freight. 


Employ- 
ment 

of puffers 
at an auc- 
tion. | 


410 


CHAPS 


XXXIV. 


A.D. 1756 


—1787. 


His colo- 
nial law. 


Campbell 
v. Hall. 


LIFE OF LORD MANSFIELD. 


dishonest in their own defence. But the right now claimed was 
never before openly avowed. An owner of goods set up for sale 
at an auction would not bid in the room for himself. Speedily after 
such a bid the owner and the auctioneer would be the only persons 
present ; and if it were discovered that there were puffers bidding, 
there would be the same dispersion. The practice is a fraud upon 
the sale, and upon the public. I cannot listen to the argument 
that it is acommon practice.* Gaming, stock-jobbing, and swindling 
are all very common; but the law forbids them all. The very 
nature of a sale by auction is that the goods shall go to the highest 
real bidder ; the owner violates his contract with the public if, by 
himself or his agent, he bids upon his goods, and no subsequent 
bidder is bound to take the goods at the price at which they are 
knocked down to him.” t 

Lord Mansfield gave earnest of his power to deal with 
questions of colonial law in deciding that certain English 
statutes passed in the reigns of Richard II. and Edward VI. 
do not extend to Jamaica, which had been conquered from 
Spain by Cromwell, and, having been abandoned by the 
Spanish inhabitants, had been re-settled by English emi- 
grants : — 

“If Jamaica is considered as a conquest,” said he, “it would 
retain its ancient laws till the conqueror thought fit to alter them. 
If it be considered as a colony which we have planted (as it ought 
to be, the old inhabitants having left the island), then these statutes 
are positive regulations of police not adapted to the circumstances , 
of anew colony, and therefore no part of that law of England 
which colonists are supposed from necessity to carry with them to 
their new abode. No act of parliament made after a colony is 
planted is construed to extend to it without express words to that 
effect.” f 


But it was in the great case of Campbell y. Hall § that he 
fully developed the law upon this subject, and explicitly laid 


* It is very gravely urged, as their chief argument, by those who are for 
permitting marriages between widowers and the sisters of their deceased wives, 
that such marriages are common; although they might reason in the same 
manner for the legalising of bigamy, 

{ Bexwell y. Christie, Cowp. 395. This rule was ratified by Lord Kenyon 
in Howard v. Castle, 6 'T. R. 642., and has ever since been acted upon. But, 
by the conditions of sale, the owner may expressly reserve the power of making 
a bid by his agent. 

¢ Rex v. Vaughan, 4 Burr. 2494, § Cowp. 204. 


LIFE OF LORD MANSFIELD. 


down the rules upon which our colonies have been governed 
ever since. 

The island of Grenada having been taken by us in the 
Seven Years’ War, and ceded to us by the Peace of 1762, 
the King, in a proclamation issued in 1763, of his own 
authority, imposed a tax of 4 per cent. on all exports; and 
the action was brought in the Court of King’s Bench in 
England by the plaintiff, a British subject, who had subse- 
quently purchased an estate and settled in the island, to 
recover back the sum he had been compelled to pay undet 
this imposition for liberty to ship his sugars to be carried to 
London; he maintaining that such a tax could only be im- 
posed by the authority of Parliament. Lord Mansfield there- 
upon laid down the six following propositions :— 

*“ 1, A country conquered by the British arms becomes a domi- 
nion of the King in right of his crown; and therefore necessarily 
subject to the legislature— the Parliament of Great Britain. 2. 
The conquered inhabitants, once received under the King’s pro- 
tection, become subjects, and are universally to be considered in 
that light ; not as enemies or aliens. 3. The articles of capitulation 
upon which the country surrendered, and the articles of peace by 
which it is ceded, are sacred and inviolable according to their true 
intent and meaning. 4. The law of every dominion annexed to 
the crown equally affects all persons and all property within the 
limits thereof, and is the rule of decision for all questions which 
arise therein. Whoever purchases, lives, or sues there, puts him- 
self under the law of the place. An Englishman in Ireland, 
Minorca, the Isle of Man, or the plantations, has no privilege dis- 
tinct from the natives. 5. The laws of a conquered country con- 
tinue in force until they are altered by the conqueror. The 
absurd exception as to Pagans mentioned in Calvin’s Case shows 
the universality and antiquity of the maxim; in all probability it 
arose from the mad enthusiasm of the Crusades. 6. The last pro- 
position is, that if the King (and when I say the King, I always 
mean the King without the consent of Parliament) has a power to 
alter the old and to introduce new laws in a conquered country, 
this legislation being subordinate, that is, subordinate to his own 
authority in parliament. He cannot make any change contrary to 
fundamental principles; he cannot exempt an individual in that 
dominion from the power of Parliament, or give him privileges 
exclusive of his other subjects.” The learned Judge gives a clear 


411 


CHAP. 
XAXIV. 


A.D. 1756 
—1787. 


412 


CHAP. 
XXXIV. 


A.D. 1756 


—1787. 


LIFE OF LORD MANSFIELD. 


opinion in favour of the legality of the proclamation : — “ It is left 
by the constitution to the King’s authority to accept or refuse a 
capitulation ; if he refuses, and puts the inhabitants to the sword or 
exterminates them, all the lands belong to him ; if he receives the 
inhabitants under his protection, and grants them their property, he 
has a power to fix such terms and conditions as he thinks proper. 
He is intrusted with making the'terms of peace ; he may yield up 
the conquest, or retain it upon what terms he pleases. These 
powers no man ever disputed; neither has it been hitherto con- 
troverted that the King may change part or the whole of the law 
or political form of government of a conquered dominion.” — He 
then draws an illustration from “the history of the conquests 
made by the Crown of England,” reasoning in a manner which 
was highly distasteful to the “ sister kingdom,” and which no 
English judge would have ventured upon after the year 1782: 
“The conquest and the alteration of the laws of Ireland have 
been variously and learnedly discussed by lawyers and writers of 
great fame at different periods of time; but no man ever said the 
Crown could not do it. The fact, in truth, after all the researches 
which have been made, comes out clearly to be as it is laid down 
by Lord Chief Justice Vaughan *, that ‘Ireland received the laws 
of England by the charters and commands of Henry IL, King 
John, Henry III.’ (he adds an) ‘ Se.’ to take in Edward I. and the 
subsequent kings; and he shows clearly the mistake of imagining 
that the charters of the 12th of John were by the assent of a Par- 
liament of Ireland. Whenever the first parliament was called in 
Ireland, that change was introduced without the interposition of 
the Parliament of England, and must therefore be derived from the 
Crown.” He proceeds with Wales, Berwick, Gascony, Calais, 
Gibraltar, Minorca, and New York, placing them all on the same 
footing, and showing the power of the King over them to be absolute 
till he had renounced it or modified it : — ‘ It is not to be wondered 
at,” he observed, “that an adjudged case in point has not been 
produced. No question was ever started before but that the 
King has a right to legislative authority over a conquered country ; 
it was never denied in Westminster Hall; it never was questioned 
in Parliament. Coke’s report of the arguments and resolutions of 
the Judges in Calvin’s Case lays it down as clear: ‘If a king 
comes to a kingdom by conquest, he may change and alter the 
laws of that kingdom ; but if he comes to it by title and descent, 
he cannot, without the consent of parliament.’ It is plain that he 


* Vaughan’s Rep. 292. 


LIFE OF LORD MANSFIELD. 


alludes to his own country, because he speaks of a country in 
which there is a parliament. In the year 1722, the Assembly of 
Jamaica being refractory, it was referred to Sir Philip Yorke and 
Sir Clement Wearge (great names) to know ‘what could be done, 
if the Assembly should obstinately continue to withhold the usual 
supplies?’- They reported thus: ‘If Jamaica is still to be con- 
sidered as a conquered island, the King has a right to lay taxes 
upon the inhabitants; but if it is to be considered in the same 
light as the other plantations, no tax can be imposed on the in- 
habitants but by an assembly of the island, or by an act of par- 
liament.’ On the other side no book, no saying, no surmise has 
been cited, and in our annals a doubt upon the subject has never 
been entertained.” 

However, having so set up the prerogative of the Crown, 
he went on to show that in this instance it had been waived 
by a prior proclamation for the settling of the government of 
Grenada and other conquests, directing the governors to con- 
vene general assemblies with power to make laws for the 
government of those colonies, agreeable, as near as might be, 
to the laws of England, and by a commission actually issued 
appointing a governor of Grenada, and authorising him to 
summon an assembly to make laws as soon as the state and 
circumstances of the island would permit. Such grants being 
irrevocable, although not acted upon, Grenada was pro- 
nounced to be in the same situation as Jamaica, so that the 
royal proclamation imposing the tax was void, and judgment 
was given for the plaintiff. 

A very interesting question, turning on general principles 
of jurisprudence, arose before Lord Mansfield, whether an 
action could be maintained in our courts by an alien enemy 
upon a ransom bill, or security for a certain proportion of 
the value of a ship and cargo taken by a privateer and re- 
leased? As usual, in such cases, he took the liberal side, 
saying, — / 

** Ransom bills are to be encouraged as lessening the horrors of 
war. Justice ought to be administered to foreigners in our courts 
in the most extensive and generous manner; because the Crown 


cannot here interpose as in absolute monarchies to compel the 
subject to do justice in an extra-judicial manner.” * 


* Cornu y. Blackburn, Doug. 640. 


413 


CHAP. 
XXXIV, 


A.D. 1756 
—1787, 


Legality of 
ransom 


bilis, 


414 


CHAP. 
XXXIV. 


A.D. 1756 
— 1787. 


Remedy 
against the 
governor 
ofa 

foreign pos- 
session. 


Fabrigas 
v. Mostyn. 


LIFE OF LORD MANSFIELD. 


Judgment was given for the plaintiff; and the same doc- 
trine was laid down even in a case where the capturing ship 
with the ransom bill on board had been captured by an English 
cruiser, — Lord Mansfield saying, “ It is sound policy as well 
as good morality to keep faith with an enemy in time of war: 
although the contract arose out of a state of hostility, it is to 
be governed by the law of nations and the eternal rules of 
justice.”* But ransom bills are now forbidden by act of 
parliament. t 

Although the respective powers and privileges of those 
possessing, and being subject to, the authority of govern- 
ment at home had been well defined, at least since the Revo- 
lution of 1688, great doubts still existed with respect to cases 
of this sort arising in the dominions of the Crown beyond the 
seas. Lord Mansfield was of essential service in establishing 
the grand maxim that a British subject is under the protec- 
tion of the constitution wherever the British flag is unfurled 
all over the globe. While Minorca was in our possession, 
General Mostyn, the governor, in a very arbitrary manner, 
arrested Signor Fabrigas, a native of the island, and without 
any just cause confined him ina dungeon. The injured man 
followed the oppressor to England, after the expiration of his 
government, and brought an action of trespass and false 
imprisonment against him in the Court of Common Pleas. 
The jury found a verdict for the plaintiff, with 30002 
damages; but a bill of exceptions was tendered to the direc- 
tion of the presiding judge, who held that the action was 
maintainable, —and this came, by writ of error, before the 
Court of King’s Bench. The case, on account of its extra- 
ordinary importance, was argued several times, two grand 
points being made for the defendant: —1. That the plaintiff 
could not sue in an English court of justice, having been 
born before the Peace of Utrecht, out of the allegiance of the 
English crown, when Minorca with the other Balearic Islands 
belonged to Spain: and, 2. That no action could be main- 
tained against the defendant in a British court of justice for 
any of his acts in Minorca, as, although he might be im- 
peached in parliament, there was no remedy against him in 


* Anthon vy. Fisher, Doug 649. n. \ ¢ Stat. 22. Geo. III. ¢. 25. 


LIFE OF LORD MANSFIELD. 


a court of law for any thing he had done in his capacity of 
governor.” 


Lord Mansfield: “It is impossible there ever should exist a 
doubt but that a subject born in Minorca has as good a right to 
appeal to the King’s courts of justice at Westminster as one who 
was born within the sound of Bow-bell; and the objection made in 
this case, of its not being stated on the record that the plaintiff 
was born since the Peace of Utrecht, by which Minorca was 
ceded to this country, is untenable, for from the moment of the 
cession all the inhabitants of the island were under the allegiance, 
and were entitled to the protection, of the British Crown. But, 
then, we are told of the sacredness of the defendant’s person as 
governor ; and it is insisted by way of distinction, that supposing 
the action will lie for an injury of this kind committed by one 
individual against another in such a dominion beyond the seas, yet 
it shall not emphatically lie against the governor. In answer to 
which I say, that, for many reasons, if it did not lie against any 
other man, it shall most emphatically lie against the governor. 
For it is truly said, that a governor is in the nature of a viceroy ; 
and therefore locally, during his government, no civil or criminal 
action will lie against him, because, upon process, he would be 
liable to imprisonment. Emphatically, the governor must be tried 
in England, to see whether he has lawfully executed the authority 
delegated to him, or whether he has abused it in violation of the 
laws of England and the trust reposed in him. The defendant, 
by being tried here, is not deprived of any means of proving his 
innocence. He might show that he only did what the public safety 
required, or that he acted as the Spanish governor might have 
done. The way of knowing foreign laws is by admitting them to 
be proved as facts, and the judge must assist the jury in finding 
what they really ordain. If the governor of a foreign possession 
is accountable in this country, he is accountable in this court. 
Complaints made to the King and Council tend to remove the 
governor; but, when he has ceased to be governor, they have 
no jurisdiction to make reparation by giving damages, or to punish 
him in any shape for any wrong which he may have committed. 
The monstrous proposition that a governor acting by virtue of 


* Buller, then at the bar, concluded a very able argument for the plaintiff 
by observing that if the verdict against Governor Mostyn should be set aside, 
it would be said of him — 

“ Hic est damnatus inani judicio; ” 
and of the Minorquins, 
* At tu, victrix provincia, ploras,” 


415 


CHAP. 
XXXIV. 





ALDw litoe 
—1787. 


416 


CHAP. 
XXXIV. 


A.D. 1756 
—1787. 


Lord 


Mansfield’s judicis ampliare justitiam, not * ampliare jurisdictionem. 


respect for 
the juris- 
diction of 
other 
courts. 


LIFE OF LORD MANSFIELD. 


letters patent under the great seal is accountable only to God and 
his own conscience, that he is absolutely despotic, and can despoil 
those under his rule both of their liberty and property with im- 
punity, is abhorrent to the principles of natural justice, and is con- 
trary to the law of England, which says to all the King’s subjects 
‘ whensoever or wheresoever you are wronged, you shall have a 
remedy.” — Judgment affirmed.* 

But Lord Mansfield said, “ The true maxim is, § Boni 
999 
He therefore carefully considered to what various tribunals 
the constitution assigned the determination of various forensic 
questions; and, not being misled by love of popularity or love 
of power while deluding himself with the notion that he only 
wished to vindicate the rights of all suitors who came before 
him, he did not endeavour to encroach upon the jurisdiction 
either of the two Houses of Parliament or of the inferior 
courts. A tempting occasion arose of securing to himself the 
acclamations of the mob as “a truly British judge” when se- 
veral actions came for trial before him, brought by sailors on 
board a merchant ship which had been captured by a Jetter of 
marque as prize, but liberated by the Court of Admiralty, 
the plaintiffs contending that the captain of the /etter of 
marque was liable to be sued by them in a court of law for 
the false imprisonment which they had undergone. But he 
clearly held that the actions could not be maintained, as the 
question of “ prize, or no prize,” was properly triable only 
before the Court of Admiralty, and it belonged to that court 
alone, upon the unjust capture of a ship as prize, to award 
damages and costs against the captor to all who have suffered 
by his wrongful act. 

“ This,” said he, “is a new attempt, which, if it succeeded, 
would destroy the British navy. If an action at law should lie by 
the owners and every man on board a ship taken as prize against 
the captor and every man on board his ship, the sea would be 
safe for the trade of our enemies, however great our naval supe- 
riority. Iam bound to suppose that the Court of Admiralty has 
done ample justice, according to the power it possessed and the 
duty imposed upon it, between all these parties.” 


* Cowper, 161. 
+ 2 Evans, 149,; Lindo v. Rodney, Doug. 613. 


LIFE OF LORD MANSFIELD. 


So, when a mandamus was applied for to compel the 
benchers of Gray’s Inn to call a person to the bar, instead of 
wishing to convert this writ into an instrument by which the 
whole scope of the executive government might be brought 
within the cognizance of the judges of the King’s Bench, 
and they might issue orders to the King himself and all in 
authority under him, he very properly refused to interfere, 
saying, “ The power of admitting persons to practise as bar- 
risters is vested in the benchers of the Inns of Court, subject 
to visitorial power; and if the applicant is wronged, he must 
apply elsewhere for a remedy.” * 

I ought to mention, however, that, misled by an old prece- 
dent, he fell into a mistake in holding that an action-at-law 
could be maintained to recover a legacy. 

PRECEDENT and PRINCIPLE often had a hard struggle 
which should lay hold of Lord Mansfield ; and he used to say 
that he ought to be drawn placed between them, like Garrick 
between TRAGEDY and ComEpy. Though he might err, 
like all other mortals, where there was no fixed rule of law 
which could not be shaken without danger, he was guided by 
a manly sense of what was proper, and he showed that he 
considered “ law a rational science, founded upon the basis 
of moral rectitude, but modified by habit and authority.” 
Thus, a notion had long prevailed that if a ship was cast 
away, and no man or animal came ashore alive, the wreck 
belonged to the King or his grantee, because the statute 
3 Edward I. c. 4. enacts that “it shall not be a wreck if 
man, dog, or cat escape alive.” A lord of a manor having 
brought an action for property wrecked when all on board 
had perished, dogs and cats included, but the property was 
clearly identified by the original owners, he said, —- 

“The doctrine contended for is contrary to the principles of 
law, justice, and humanity. The very idea of it is shocking. ‘The 


* Rex v. Benchers of Gray’s Inn, Doug. 353.— I hope that the system which 
has prevailed satisfactorily may long continue; but if ever the Inns of Court 
should make arbitrary rules for the government of their members, and should 
enter into a contest for students, by abridging the period of study and relaxing 
the regulations for the exclusion of improper candidates, it will be necessary for 
the legislature to interpose, and to establish a uniform and efficient discipline 
by way of preparation for a profession of such importance to the community. 

{ Atkins v. Hill, Cowp. 284.; Hawkes v. Saunders, Cowp. 289.; Deeks v. 
Strutt, 5 Term. Rep. 690. 


VOL. II. EE 


417 


CHAP. 
XXXIV, 





A.D. 1756 
—1778. 


Right to 


wreck. 


418 


CHAP: 
XXXIV. 


‘A.p. 1756 
—1778. 


Somer- 
sett’s Case: 
a slave 
becomes 
free in 
England. 


LIFE OF LORD MANSFIELD. 


coming to shore of a dog or cat alive can be no better proof than 
if they should come ashore dead. The escaping alive makes no 
sort of difference. If the owner of the dog, or cat, or other animal, 
was known, the presumption of the goods belonging to the same 
person would be equally strong whether the animal breathed or 
not. It was only when no owner could be found that, by common 
law, the goods belonged to the King; and the statute is only 
declaratory of the common law. It does not enact that, if neither 
man, cat, nor dog escape alive, the wreck shall belong to the King. 
The owner was only required to show that the property was his 
per certa indicia et signa, and animals were mentioned by way of 
instance. Anciently, goods sent by sea probably were not distin- 
guished by marks and numbers so accurately as at the presnt day, 
and then a dog or a cat might afford a presumption towards ascer- 
taining the owner of the goods. The goods in question are proved 
to have been the property of the defendant ; and, after this attempt 
to seize them, the plaintiff may betake himself to the trade of a 
wrecker on the Cornish coast.” —Judgment for the defendant.* 

Lord Mansfield first established the grand doctrine that 
the air of England is too pure to be breathed by a slave. 
James Somersett, a negro, being in a state of slavery in 
Africa, was carried from thence to Jamaica, where, by law, 
slavery was permitted, and there sold as a slave. Mr. Steuart, 
his master, brought him over to England, intending soon to 
return with him to Jamaica. While confined on board a 
ship in the river Thames, that he might be carried back, he 
claimed his freedom, and, being brought up under a writ of 
habeas corpus, the court had to determine whether he was 
entitled to it. 

On behalf of his master it was argued, that villeinage, or 
slavery, had been permitted in England by the common law; 
that no statute had ever passed to abolish this status ; that. 
although de facto villeinage by birth had ceased,‘a man might 
still make himself a villein by acknowledgment in a court of 
record ; that at any rate the rights of these parties were to be 
decided according to the law of Jamaica, where they were 
domiciled; and as there could not be the smallest doubt that 
the voyage to England did not amount to emancipation, so 
that if Somersett were again in Jamaica he would still be 


* Hamilton vy. Davis, 5 Burr. 2732, 


LIFE OF LORD MANSFIELD. 


considered the property of his master, the relation between 
them could not be considered suspended in England. Various 
instances were stated in which negro slaves, brought over 
here from the West Indies, had been carried back again 
against their will by their masters; and dicta of Lord Talbot 
and Lord Hardwicke were cited, to the effect that this might 
lawfully be done. 


Lord Mansfield: “I am quite clear that the act of detaining 
a man as a slave can only be justified by the law of the country 
where the act is done, although contracts are to be construed ac- 
cording to the law of the country where they are entered into, 
and the succession to personal property according to the law of 
the country where the deceased owner was domiciled at the 
time of his death. Then what ground is there for saying that the 
status of slavery is now recognised by the law of England? that 
trover will lie for a slave? that a slave-market may be established in 
Smithfield? I care not for the supposed dicta of judges, however 
eminent, if they be contrary to all principle. ‘The dicta cited were 
probably misunderstood ; and, at all events, they are to be disre- 
garded. Villeinage, when it did exist in this country, differed in 
many particulars from West India slavery. The lord never could 
have thrown his villein, whether regardant or in gross, into chains, 
sent him to the West Indies, and sold him there to work in a mine 
or in a cane-field. At any rate, villeinage has ceased in England, 
and it cannot be revived. The air of England has long been too 
pure for a slave, and every man is free who breathes it. Every 
man who comes into England is entitled to the protection of 
English law, whatever oppression he may heretofore have suffered, 
and whatever may be the colour of his skin: 

iss Quamvis ille niger, quamvis tu candidus esses.’ 
Let the negro be discharged.” * . 

But Lord Mansfield gives a clear opinion in fayour of the 
legality of pressing mariners for the royal navy, saying that 
“the practice was not only essential for the safety of the 
state, but had existed from the remotest antiquity, was sup- 
ported by judicial decisions, and was even incidentally recog- 
nised by acts of parliament.” He observed, that “ a pressed 
sailor is not a slave; no compulsion can be put upon him 
except to serve his country, and, while doing so, he is entitled 
to claim all the rights of an Englishman.” + 


* See 20 St. Tr. 1—82. + Rex v. Tubbs, Cowp. 512. 
EE 2 


419 


CHAP. 
XXXIV. 


A.D. 1756 
—1778. 


Legality of 
pressing 
seamen. 


420 
CHAP. 
XXXIV. 


A.D. 1756 
—1778. 


Wagers. 


On the 
result of an 
appeal to 
the House 
of Lords. 


Two heirs 
“yunning 
their 
fathers.” 


LIFE OF LORD MANSFIELD. 


Happily the law is at last settled by the legislature upon 
the footing for which I had long contended, that “ no action 
can be maintained on a wager;” but it is still curious to see 
how such a judge as Lord Mansfield disposed of cases of this 
sort, when the general rule, subject to exceptions, was, that 
a wager might be enforced like any other contract. A party, 
bringing by appeal to the House of Lords a decree in Chan- 
cery which had been pronounced against him, laid a wager 
that the decree would be affirmed. The decree being re- 
versed, he refused to pay the wager; and an action being 
brought against him, he argued—1. It is essential to the 
validity of a wager that the event be contingent, but the law 
of the country must be taken to be clear, evident, and 
certain, insomuch that the reversal of this decree was as little 
doubtful as that a stone will fall to the earth by the force of 
gravitation. 2. At all events a wager respecting a judicial 
proceeding is illegal and void, as contrary to public policy. 

Lord Mansfield: “'This contract is equal between the parties ; 
they have each of them equal knowledge and equal ignorance ; and 
it is concerning an event which—reasoning by the rules of pre- 
destination —is, to be sure, so far certain, as it must be as it 
should afterwards happen to be. Touching the certainty of the 
law, it would be very hard upon the profession if it were so certain 
that everybody knows it: the misfortune is that it is so uncertain, 
that much money must be paid before we can find it out, even in 
the court of last resort. Then I cannot say that this wager is against 
sound public policy. A parson, who wanted to be made a bishop, 
conversing with the Prime Minister respecting a see then vacant, 
said, ‘I will bet you so much (naming a good round sum) that I 
have not the bishopric.’ This was a mere disguise to purchase it, 
and the contract manifestly corrupt and void. So, if the present 
wager had been made with one of the judges or one of the peers 
who were to give an opinion on the validity of the decree, it would 
have been construed as a bribe. But this transaction, as far as I 
can see, contains nothing immoral, or contrary to justice, and I do 
not think that we can prevent the plaintiff from recovering the 
money he has won.” — Judgment for the plaintiff.* 

Mr. Codrington and Mr. Pigott, two licentious young 
men,—celebrated characters on the turf,—being heirs to 
great estates, agreed to wager a large sum upon the survivor- 


* Jones v. Randall, Cowp. 37. 


LIFE OF LORD MANSFIELD. 


ship of their respective fathers, or, as it was termed, “ to run 
their fathers.” The former, however, feeling some little 
remorse, Lord March, afterwards Duke of Queensberry *, 
agreed to stand in his place, and mutual notes were given for 
the payment of the sum staked. It turned out that Mr. 
Pigott’s father was at that time actually dead, of which 
neither party had any knowledge or suspicion. Lord March 
now brought an action on the wager, which the counsel for 
the defendant insisted was illegal and void. 


Lord Mansfield: “The question is, what the parties really 
meant? The material contingency was, which of the two young 
heirs should come to his father’s estate first ? It was not known 
that the father of either of them was then dead. All circumstances 
show that, if this possibility had been thonght of, it would not 
have made any difference in the bet, and there is no reason to 
presume that they would have excepted it. ‘The intention was, 
that he who came first to his estate should pay the sum of money 
to the other, who stood in need of it. That the event had hap- 
pened was in the contemplation of neither party. The contract 
was fair; and, by the just interpretation of it, the plaintiff is 
entitled to recover.” t 

But he held that a wager between two voters, respecting 
the event of an election for members of parliament, was 
illegal :— 

Lord Mansfield: “* Whether this particular wager had any other 
motive than the spirit of gaming and the zeal of both parties, I do 
not know; but our determination must turn on the species and 
nature of the contract; and if that is, in the eye of the law, cor- 
rupt, and against the fundamental principles of the constitution, 
it cannot be supported by a court of justice. The law declares 
that the elector of members of parliament shall be free from pe- 
cuniary influence in giving his vote. ‘This is a wager, in the 
form of it, between two voters, and the event is the success 
of one of the rival candidates. ‘The success of either candidate 
is material; and, from the moment the wager is laid, both parties 
are fettered. It is, therefore, laying them under a pecuniary 
influence. What is so easy as, in a case where a bribe is intended, 
to lay a wager? It is difficult to prove that the wager makes the 


* Whom I remember when he was called “ old Q.,” sitting in his balcony in 
Piccadilly, looking through an opera-glass at the ladies as they passed by. 
t+ Earl of March v. Pigott, 5 Burr. 2804. 


EE $ 


421 


CHAP. 
XXXIV. 


A.D, 1756 
= nes 


On the 
sex of the 
Chevalier 
D’Eon. 





LIFE OF LORD MANSFIELD. 


elector give a contrary vote to what he would otherwise have 
given, but it has a tendency to influence his mind. Therefore, in 
the case respecting a decision of the House of Lords, if the wager 
had been laid with a lord of parliament or a judge, it would have 
been void from its tendency, without considering whether a bribe 
was really intended or not.” — Judgment for the defendant.* 

I shall close this head with the celebrated wager upon the 
sex of the CHEVALIER D’Eon. He had served as a military 
officer, had acted as a diplomatist, and had fought duels, but 
his appearance was very effeminate; and after he had resided 
some years in England, frequenting race-courses and gaming- 
houses in male attire, Mr. Dacosta wagered a large sum with 
Mr. Jones that the supposed Chevalier was a woman, and 
brought an action to recover the amount. The case coming 
on before Lord Mansfield at nis? prius, he allowed the trial 
to proceed, and, after many witnesses had been examined, the 
jury found a verdict for the plaintiff. But the case was 
subsequently brought before the whole court, — when, the 
verdict being admitted to be according to the fact, the 
question was learnedly discussed whether the action was in 
point of law maintainable ? 

Lord Mansfield: “The trial of this cause made a great noise 
all over Europe; and, from the comments made upon it, and farther 
consideration, I am sorry that I did not at once yield to the con- 
sideration that it led to indecent evidence, and was injurious to 
the feelings and interests of a third person. I am sorry, likewise, 
that the witnesses subpoenaed had not been told they might refuse 
to give evidence if they pleased. But no objection to their being 
examined was made by the counsel for the defendant; nor did 
any of themselves apply for protection, or hesitate to answer. I 
have since heard that many of them had been confidentially em- 
ployed by the person whose sex was in controversy in the way 
of their profession or business. ‘That any two men, by laying a 
wager concerning a third person, may compel his physicians, 
servants, and relations to disclose what they know about his per- 
son, would have been an alarming proposition. Mere indecency 
of evidence is no objection to its being received when it is necessary 
to the decision of a civil right or criminal liability. Upon this 
ground we think that Mr. Justice Burnet was wrong in refusing 
to try the case before him where.a young lady brought an action 


* Allen vy. Hearn, 1 Term. Rep. 57. 


LIFE OF LORD MANSFIELD. 


of slander for saying that she had a defect in her person which 
unfitted her for marriage, and the defendant alleged in his plea 
that she had such a defect; for there, if the statement was false, 
the plaintiff had received a grievous injury, for which she was 
entitled to exemplary damages; and if it was true, the defendant 
ought to have been freed from the charge of a malicious lie, how- 
ever he might still be liable to censure for indelicately proclaiming 
the truth. But if it had been merely an action on a wager 
whether the young lady had such a defect, it would have been 
nearly the present case, and I think the judge would have been 
well justified in refusing to proceed with the trial; or, declaring 
that the supposed contract was void, in instantly nonsuiting the 
plaintiff. Indifferent wagers upon indifferent matters, without 
interest to either of the parties, are certainly allowed by the law 
of this country. Whether it would not have been better to treat 
all wagers as gaming contracts, and to have held them void, it is 
now too late to discuss; but there are exceptions to the rule, on the 
ground of injury to the community or to individuals. Suppose a 
wager between two men, that one of them, or that a third person, 
shall do some criminal act. Suppose I lay you a wager that you 
do not beat such a person; you lay that you will. Suppose a 
wager that the act shall be repeated in Covent Garden, for which 
Sir Charles Sedley was prosecuted. Would a court of justice try 
any of these wagers, tending to crime and immorality? We are 
told that the objection is not supported by adjudged cases; but I 
say you offend, you misbehave, by laying such a wager. Upon 
such a wager would a court of justice try whether a married 
woman has committed adultery, or an unmarried woman has had 
a child? ‘The party to be affected would have a right to say, 
‘ How dare you bring my name in question?’ Ifa husband com- 
plain of adultery, he shall be allowed to try it, for he is a party 
interested and aggrieved. So, upon a right to the inheritance of 
a freehold estate, it may be necessary to try whether the claim- 
ant’s mother was married before his birth. But third persons 
shall not, by laying a wager wantonly, expose others to odium or 
ridicule.— We come to the present case. Here is a person who 
represents himself to the world as a man, is stated on the record 
to be Monsieur le Chevalier d Eon, has acted in that character in a 
variety of capacities, and has his reasons and advantages in so ap- 
pearing. Shall two indifferent people, by a wager between them- 
selves, try whether he is a cheat and impostor, and be allowed to 
subpeena all his intimate friends and confidential attendants to 


give evidence that will expose him all over Europe? Such an 
EE 4 


423 


CHa Pe 
XXXIV. 


A.D. 1756 
—1778. 


424 


CHAP. 
XXXIV. 





A.D. 1756 
—1778, 


Conspiracy 
to corrupt 
a young 
female 
indictable, 


LIFE OF LORD MANSFIELD. 


inquiry is a disgrace to judicature. If the Chevalier had applied 
to the Court and said, ‘Here is a villanous wager laid to injure 
me; I, as a stranger, whose interest it affects, pray you to stop it,’ 
we should instantly have done so. We have no authority to 
declare all wagers illegal; a wager whether the next child shall be 
a boy or a girl hurts no one. But are we to lay down doctrine 
which would give validity to a wager whether a young woman has 
a mark upon a particular part of her body, and authorise the 
calling of her chambermaid to prove it? The present wager, being 
indecent in itself, and manifestly a gross injury to a third person, 
is not to be endured.” — Judgment for the defendant.* 

Lord Mansfield most usefully asserted the power of the 
common law to punish those who are guilty of offences contra 
bonos mores, although there may not have been any prior 
prosecution for the specific offence. An application was 
made against Sir Francis Blake Delaval, one Bates a music 
master, and others, for a conspiracy to corrupt the chastity of 
a young female. This person, at the age of fifteen, was 
bound apprentice to Bates, to be instructed in the musical 
art; and, being possessed of great beauty as well as musical 
genius, she attracted the notice of Sir Francis, then a fashion- 
able libertine of much notoriety. She was assigned over to 
him for the sum of 200/., which Bates received by the hands 
of his tailor, and then she was indentured to him to learn 
music, and she was made to covenant that she would live 
with him as his apprentice, and that she would not quit his 
apartments. Having thus got possession of her, he paraded 
her about in public places as his mistress. The counsel for 
the defendants contended that, however immoral their con- 
duct had been, they were not guilty of any offence cognizable 
in a criminal court. 

* Dacosta v. Jones, Cowp. 729. Although the verdict was set aside on legal 


grounds, it was allowed to settle many other bets which had been laid on the 
same question. The Annual Register for 1765, p. 167., says, ‘ By this deci- 


_sion, no less a sum than 75,0002. will remain in this country which would other- 


wise have been transmitted to Paris. The Chevalier has left England, declaring 
that she had no interest whatever in the policies opened on “her sex.” The 
Chevalier, then assuming female attire, remained in France, supported by a pen- 
sion from the French government for having been long a spy of Louis X V., 

till the breaking out of the Revolution in 1790. He then came to England, 
and, being in great distress, lived with a lady of reputation as her companion ; 
but, dying in the year 1810, was found, on a post-mortem examination, to be 
indeed of the sex which he had originally claimed, and, in all respects, perfectly 
formed. 


LIFE OF LORD MANSFIELD. 


Lord Mansfield: “Tt is true that many offences of the incon- 
tinent kind are to be considered as sins only, and must be left to 
the conscience of the offender, or penance to be imposed by the 
Ecclesiastical Court pro salute anime. But this Court has the 
superintendence of offences contra bonos mores, and a conspiracy 
to corrupt the innocence of a young female is an offence which 
may be made the subject of an information or indictment, and 
which we can visit with fine and imprisonment or infamous 
punishment. If Sir Francis Delaval had merely seduced this un- 
fortunate girl by his own solicitations, he might only have been 
liable to an action for damages at the suit of her father; but 
entering into a wicked bargain by which he has purchased her 
from another, the two must be considered as conspiring to ruin 
her, and they are both guilty of a misdemeanor. Let the rule for 
filing a criminal information against them be absolute.” * 

Lord Mansfield acquired great popularity by this de- 
claration of the law, which gave.a salutary check to the 
abominable practices of the plotters against female innocence; 
but he incurred much obloquy by his direction to the jury in 
the great crim. con. cause of the Earl of Grosvenor v. His Royal 
Highness the Duke of Cumberland. ‘The plaintiff’s counsel 
having urged the exalted rank of the defendant as a ground 
for very heavy damages, the Judge said that “the rank of 
the defendant was wholly immaterial; that they should con- 
sider the cause as if it were between A. and B.; and that 
they were merely to give the plaintiff a compensation for the 
loss of his wife’s society — this loss not being lessened or 
enhanced by the consideration whether the wrong-doer was 
a peasant or a prince.” We may safely acquit him of 
all corruption and sycophancy in this direction ; and it is 
somewhat countenanced by the converse proposition of an 
eminent judge in a similar action which a nobleman brought 
against his coachman, and in which the jury gave 10,0002. 
damages. But it is quite at variance with the usual evidence 
in these cases that the defendant is a man of large property, 
and in reality the disgrace and sufferings of the plaintiff may 


* Holliday, 214. I wish that those who, for several years past, have been 
bringing forward bills “for the protection of females ” would be contented with 
the law as laid down here, and abandon their well-meant but injudicious at- 
tempts. Where there is a conspiracy, the law is already strong enough to 


punish ; and a simple departure from the rules of chastity cannot be made the 
subject of criminal legislation. 


425 


CHAP: 
XXXIV. 


A.D. 1756 
—1778. 


Lord 
Grosvenor 
v. Duke of 
Cumber- 
land. 


426 


CHAP. 


XXXIV. 


A.D, 1756 
—1778. 


Literary 
property 


LIFE OF LORD MANSFIELD. 


” 


be much greater from the consideration that the destroyer of 
his domestic happiness is nearly related to the throne.* 

On the great question of literary property, on which, for 
the first time after Lord Mansfield presided in the Court of 
King’s Bench, the judges were divided, he particularly dis- 
tinguished himself, contending on (I think) unanswerable 
grounds that, by the common law, an author, after printing 
and publishing his work, is entitled to prevent others from 
reprinting and publishing it without his leave, — which would 
amount to a perpetual copyright in him and his family. The 
three puisnies began; WILLES and ASTON pro, and YATES 


contra. 

Lord Mansfield: “ This is the first instance of a final difference 
in this Court since I sat here. Every order, rule, judgment, and 
opinion has hitherto been unanimous. That unanimity never 
could have happened if we did not, among ourselves, communicate 
our sentiments with great freedom; if we did not form our con- 
clusions without any prepossession to first thoughts; if we were 
not always open to conviction, and ready to yield to each other’s 
reasons. We have all equally endeavoured at that unanimity 
upon this occasion ; we have talked the matter over many times ; 


* 2 Evans, $359. Junius took good advantage of this direction in his Letter 
to Lord Mansfield: — ‘“ An action for criminal conversation being brought by 
a peer against a prince of the blood, you were daring enough to tell the jury 
that, in fixing the damages, they were to pay no regard to the quality or fortune 
of the parties; that it was a trial between A. and B,; that they were to con- 
sider the offence in a moral light only, and give no greater damages to a peer of 
the realm than to the meanest mechanic. I shall not attempt to refute a doc- 
trine which, if it was meant for law, carries falsehood and absurdity upon the 
face of it, but, if it was meant for a declaration of your political creed, is clear 
and consistent. Under an arbitrary government, all ranks and distinctions are 
confounded. The honour of a nobleman is no more considered than the repu- 
tation of a peasant ; for, with different liveries, they are equally slaves.” The 
bad law of the Judge, however, was soon forgotten, amid the ridicule excited 
by the correspondence of the lovers. ‘* Their letters,” says Horace Walpole, 
“were produced at the trial, and never was the public regaled with a collection 
of greater folly! Yet to the lady’s honour be it said, that, bating a few oaths 
which sounded more masculine than tender, the advantage in grammar, spelling, 
and style was all in her favour. His Royal Highness’s diction and learning 
searce excelled that of a cabin-boy, as those elegant epistles existing at present 
may testify. Some, being penned on board of ship, were literal verifications of 
Lord Dorset’s ballad, — 

‘ To you fair ladies now on Jand, 
We men at sea do write; 
But first would have you understand 
How hard ’tis to indite.’” 


(Mem. Geo, III., iii. 104.) One of these effusions thus began : — 
«“ Hear I am all by myself at see!” 


LIFE OF LORD MANSFIELD. 


Ihave communicated my-thoughts in writing, and I have read 
the three arguments which have just been delivered. In short, 
we have equally tried to convince or to be convinced. But in 
vain: we continue to differ, and, whoever is right, each is bound to 
abide by and deliver that opinion which he has deliberately formed.” 


I can only introduce a few of the observations by which he 
so ably availed himself of the concession, that the author, 
before publication by himself, could prevent its being pub- 
lished by another ; and met the metaphysical reasoning, that 
there can be no property in that which cannot be perceived 
by the senses : — 


“It has all along been expressly admitted, that by the common law 
an author is entitled to the copy * of his own work until it has been 
once printed and published by his authority. The property in the 
copy thus limited is equally an incorporeal right as much as that 
contended for, to present a set of ideas communicated in a set of 
words by conventional characters. It is equally detached from 
the manuscript, or any other physical existence whatsoever. The 
property, whether limited or extended, is equally incapable of 
being violated by crime indictable, and is only violated by 
another’s printing without the author’s consent, which is a civil 
injury. ‘The remedy is the same by an action on the case for 
damages, or a bill in equity for specific relief. No action of de- 
tinue, trover, or trespass v2 et armis, lies; for the limited pro- 
perty is equally a property in notion, and has no corporeal, tangible 
substance. No disposition, no transfer of the paper upon which 
the composition is written, marked or impressed, though it gives 
the power to print and publish, can be construed a conveyance of 
the right to do so, without the author’s express consent, much less 
against his will. Dean Swift was certainly proprietor of the paper 
upon which Pope’s letters were written. I know that Mr. Pope 
had neither the original nor any transcript of them, and that he 
had only a very imperfect memory of their contents. Yet the 
Lord Chancellor held that he was entitled to stop the publication 
of them by a printer into whose hands they had fallen. If the 
copy belongs to an author after publication, it certainly belonged 
to him before. But if it does not belong to him after, where is 
the common law which says there is such a property before? All 
the metaphysical subtleties from the nature of the thing may be 


* He had explained that he used “ copy in the technical sense in which it 


had been used for ages, to signify the incorporeal right to the sale, printing, and ~ 


publishing of somewhat intellectual, communicated by letters.” 


427 


CHAP. 
XXXIV. 
A.D. 1756 
— 1778. 





428 


CHAP: 
XXXIV. 


A.D. 1756 


ma bers 


LIFE OF LORD MANSFIELD. 


equally objected. It is incorporeal. It relates to ideas detached 
from any physical existence. It has none of the indicia of 
property. The same string of questions may be asked upon the 
right before publication. Is it real or personal ? Does it go to 
the heir or executor? Is it assignable or not? Can it be for- 
feited? Can it be taken in execution? Can it be vested in the 
assignees of a bankrupt ? The common law as to copy before pub- 
lication cannot be founded upon custom; as, till the injunction in 
1732 against Curl publishing Mr. Pope’s letters, the case of piracy 
before publication never existed; it never was put or supposed. 
From what source, then, is the common law drawn which is ad- 
mitted to be so clear in respect to the copy before publication ? 
We are told, because it is just that an author should reap the 
pecuniary profits of his own ingenuity and labour; it is just that 
another should not use his name without his consent ; it is fit that 
he should judge when to publish, or whether he will ever publish ; 
it is fit that he should not only choose the time but the manner of 
the publication — how many volumes — what number of copies — 
what paper — what print; it is fit he should choose to whose care 
he will trust the accuracy of the impression, and to whose honesty, 
-— that interpolations may not be foisted in. These considerations, I 
allow, are sufficient to show that it is agreeable to the principles 
of right and wrong, the fitness of things, convenience, and policy, 
and therefore to the common law, to protect the copy before pub- 
lication. But the same considerations hold with equal strength 
after the author has published. He can reap no pecuniary profit, 
if the next day his work may be pirated upon worse paper, and in 
worse print, and at a lower price. The author may not only be 
deprived of any profit, but be ruined by the expense he has in- 
curred. He is no more master of the use of his own name. He 
has no control over the correctness of his own work. He cannot 
prevent additions. He cannot retract errors. Any one may print, 
pirate, perpetuate, aggravate his imperfections, and may propagate 
sentiments under his name which he never entertained, or, upon 
more deliberation, disapproves, repents, and is ashamed of. For 
these reasons it seems to me equally just and fit to protect the copy 
after publication. The general consent of this kingdom for ages 
is on the affirmative side. The legislative authority has taken it 
for granted, and interposed penalties to give it additional protec- 
tion for atime. The single opinion of such a man as Milton, 
speaking after much consideration on the very point, is much 
stronger than any fanciful analogies from gathering acorns, or ac- 


LIFE OF LORD MANSFIELD. 


quiring a right to a field by possession, where the writers referred 
to, instead of having this question in contemplation, speak of an 
imaginary state of nature before the invention of letters.” 

The pure common-law right was never finally decided ; for 
the case being brought by writ of error before the House of 
Lords, their Lordships, by the advice of Lord Chancellor 
Camden, determined that ‘‘ whatever the right of the author 
might be at common law, it was now limited to the period 
specified in the statutes passed for his protection, during 
which specific remedies are afforded to him;” and, although I 
entirely assent to the reasoning that no right to print and 
publish a book is acquired by purchasing a printed copy of 
it, any more than by a present from the author of a MS. 
copy before publication, I admit that this is a fit subject for 
legislative enactment. Perhaps there could not be a better 
arrangement for authors, and for the public, than by the 
recent statute, which gives an efficient monopoly during the 
author’s life and a reasonable time afterwards for the benefit 
of his family, and secures the free circulation of the work 
in all time thereafter. 

In looking through the reports of Lord Mansfield’s de- 
cisions, it is wonderful to observe how many of them turn 
upon the law of evidence ; but we must remember that “ he 
found it of brick, and that he left it of marble.” It was in- 
dispensably necessary for him in this department to overrule 
many dicta to be found in the old Reporters; and, early in 
his career, he said ‘‘ We do not sit here to take our rules of 
evidence from Stderfin and Keble.” The whole of it was 
<<‘ judge-made law,” and much of it made by judges of very 
narrow understandings, who held, among other things, that 
« Jews, Turks, and infidels are not to be examined as wit- 
nesses because they cannot kiss the Holy Gospels.” Con- 
sidering that, before juries, the verdict depended upon the 
impression made upon the minds of unlearned men, he was 
bound to exclude all evidence which was more likely to 
mislead than to assist them; but still he leaned against the 
old maxims by which evidence was rejected instead of being 
sifted, and he wished that objections should be pointed against 
the credit rather than against the competency of witnesses. 


429 


CHARS 
XXXIV. 


A.D. 1756 
—17783 


Lord 
Mansfield’s 
decisions 
on the law 
of evidence, 


Famous 
case of 
Perrin v. 
Blake. 


LIFE OF LORD MANSFIELD, 


He, on one occasion, fell into a considerable blunder, by 
admitting witnesses to contradict a written agreement signed 
by the parties* ; but the great bulk of his decisions re- 
specting the admission or rejection of evidence have been 
received with approbation, and to them chiefly we are in- 
debted for our established rules upon this important subject. 
These place the English law for once above the Roman Civil 
Law itself, which, notwithstanding its general exquisite good 
sense, is here arbitrary and capricious. Lord Mansfield ob- 
tained the highest renown in this department by his com- 
mitting for perjury the attesting witnesses to a will who 
falsely swore that they never saw it executed by the testator, 
and permitting the will to be established by the testimony of 
other witnesses who were acquainted with the testator’s hand- 
writing. f 

I must now mention the case of Perrin v. Blake, which 
divided the profession of the law into bitter factions for many 
years, and which is still famous in the traditions of West- 
minster Hall. I am sorry to say that in the course of the 
discussions which arose upon it Lord Mansfield got into a 
very awkward scrape, from which he was not able to ex- 
tricate himself with credit; and that it afforded his enemies 
plausible grounds for charging him with rashness, obstinacy, 
and disingenuousness. The following statement, which ne- 
cessarily enters into some of the subtleties of English con- 
veyancing, had better be passed over by non-learned readers ; 
but without it this memoir would sadly disappoint many of 
my legal brethren, who, when they first see “THE Lives 
OF THE CHIEF JUSTICES,” will eagerly turn to discover 
which side the author takes in the great “ Perrin-oblakeian 
controversy. ” A testator, seised in fee of sie duly made 
his will in the following form: 

“ It is my intent and meaning, that none of my children should 
sell or dispose of my estate for longer term than his life; and to 
that intent I give, devise, and bequeath all the rest and residue of 
my estate to my son John, and any son my wife may be enceinte 
of at my death, for and during the term of their natural lives ; the 
remainder to my brother-in-law Isaac Gale and his heirs, for 


* Meres y. Ansell, 3 Wils, 275. + See 2 Evans, 300— $59. 


LIFE OF LORD MANSFIELD. 


and during the natural lives of my said son John and the said 
infant; the remainder to the heirs of the bodies of my said son 
John and the said infant, lawfully begotten, or to be begotten ; 
the remainder to my daughters for and during the term of their 
natural lives, equally to be divided between them; the remainder 
to my said brother-in-law, Isaac Gale, during the natural lives of 
my said daughters respectively; the remainder to the heirs of the 
bodies of my said daughters, equally to be divided between them ; 
and I do declare it to be my will and pleasure, that the share or 
part of any of my said daughters that shall happen to die shall im- 
mediately vest in the heirs of her body in manner aforesaid.” 

The wife was not enceinte; and John, the son, insisting 
that under the will he was tenant. in tail, suffered a recovery, 
and alienated. On his death the person next in remainder, con- 
tending that John was only tenant for life, brought an action 
to recover the lands; and the great question was, whether he 
took an estate for life or in tail? According to the cele- 
brated rule in Shelley’s Case, established in the reign of 
Elizabeth on feudal principles and on prior authorities, “ where 
an estate of freehold is given to an ancestor, and in the same 
gift or conveyance an estate is given either mediately or 
immediately to his heirs, these are construed words of limit- 
ation, not of purchase, and he himself takes an estate tail.” * 
Now by this will there was an estate for life limited 
to John, with a remainder to the heirs of his body. 
Therefore, if the rule was to be applied, John was tenant 
in tail, with the power of alienation. But the testator had 
declared his intention to be that none of his children should 
sell or dispose of the estate, and he had interposed a limitation 
to Isaac Gale during John’s life. It was contended, there- 
fore, that he had manifested a clear intention that John 
should take for life only, and that the heirs of John should 
take by purchase (in the language of the law), and not by 
descent ; 7. e. immediately from the testator, and not as in- 
heriting from the first taker. There had been a solemn de- 
cision in Coulson vy. Coulson, before Lord Mansfield, that 
such words, intimating an intention by the testator that the 
first taker should not have a power of alienation, did’ not 


* Shelley’s Case, 1 Rep. 93a. 


431 


CHAP, 
XXXIV. 


A.D. 1756 
—1778, 


432 


CHAP! 
XXXIV. 


A.D. 1756 


—1778. 


LIFE OF LORD MANSFIELD. 


overcome the effect of giving by the same instrument an 
estate for life to a devisee, with a remainder to the heirs of his 
body, upon the supposition that the testator must be sup- 
posed to have used the words of these limitations in their 
usual technical sense, and that their effect was not to be 
controlled by other words indicating a wish or intention in- 
consistent with or derogatory to the estate-tail so created. 
The universal opinion of lawyers now is, that Perrin v. Blake 
should at once have been determined in conformity to this 
rule, which had long been acquiesced in and acted upon. 
But, unfortunately, Lord Mansfield being intoxicated by the 
incense offered up to him, or misled by an excessive desire of 
preferring what he considered principle to authority, took a 
different view of the construction of the will, and resolved 
that John should only be considered as having taken an 
estate for life. Two of the puisnies (Willes and Aston) 
were induced to agree with him, but the stout-hearted Yates 
stubbornly stood out for the rule in Shelley’s Case and the 
authority of Coulson vy. Coulson. 

Lord Mansfield: “'The law having allowed a free communi- 
cation of intention to the testator, it would be strange to say to 
him, ‘ Now you have communicated your intention, so that every 
body understands what you mean; yet because you have used a 
certain expression of art, we will cross your intention and give 
your will a different construction, though what you meant to have 
done is perfectly legal, and the only reason for contravening you 
is because you have not expressed yourself as a lawyer.’ My — 
examination of this question always has, and, I believe, ever will, 
convince me that the legal intention, when clearly explained, is 
to control the legal sense of a term of art, unwarily used by the 
testator. It is true, in Shelley’s Case the rule is laid down as 
stated to-day; but that rule can never affect this question. I 
must agree with my brothers Aston and Willes, on the grounds 
that the intention must govern ; that here the intention is manifest 
that Shelley’s Case is no universal proposition, and that there is 
no sound distinction between a devise of the legal estate and of a 
trust, or between an executory trust and one executed.”* [ After 
commenting on the cases, he thus concluded :] “I admit that 

* These words are put into Lord M.’s mouth, but I cannot believe that he 


spoke them, as in executory trusts the same effect is not given to technical 
language. 


LIFE OF LORD MANSFIELD. 


there is a devise to John the testator’s son for life, and in the same 
willa devise to the heirs of his body; and I agree that this is 
within the rule of Shelley’s Case, and I do not doubt that there 
are and have been always lawyers of a different bent of genius and 
different course of education, who have chosen to adhere to the 
strict letter of the law, and they will say that Shelley’s Case is an 
uncontrollable authority, and they will make a difference between 
trusts and legal estates, to the harassing of a suitor; but if the 
courts of law will adhere to the mere letter of the law, the great 
men who preside in Chancery will ever discover new ways to 
creep out of the lines of law, and will tamper with equity. My 
opinion, therefore, is, that the intention being clear beyond doubt 
to give an estate for life only to John, and an inheritance suc- 
cessively to be taken by the heirs of his body, and his intention 
being consistent with the rules of law, it shall be complied with 
in contradiction to the legal sense of the words used by the testator 
so unguardedly and ignorantly.” * 

This judgment was brought by writ of error into the 
Exchequer Chamber, and was there reversed by the opinions 
of all the Judges of the Common Pleas and Exchequer ex- 
cept Chief Justice De Grey and Baron Smyth.t Many, 
however, thinking that Lord Mansfield must be infallible, 
still backed his opinion, and the case was brought by another 


* Judge Yates was so much hurt by the sarcasms thus levelled against him, 
that he resigned his seat in the Court of King’s Bench, and transferred himself 
to the Court of Common Pleas. 

+ Mr. Justice Blackstone’s argument on this occasion was so inimitably ex- 
quisite, that his reputation as a lawyer depends upon it still more than upon his 
Commentaries, and I cannot deny myself the pleasure of copying a few sen- 
tences from it: — “It is the best and safest way to adhere to those criteria 
which the wisdom of the law has established for the certainty and the quiet of 
property. Every testator when he uses the legal idiom shall be supposed to use 
it in its legal meaning. If the contrary doctrine were to prevail,—if courts, 
either of law or equity (in both of which the rules of interpretation must always 
be the same), if these, or either of them, should indulge an unlimited latitude 
of forming conjectures upon wills, instead of attending to their grammatical or 
legal construction, the consequence must be endless litigation, Every title that 
belongs to a will must be brought into Westminster Hall; for if once we depart 
from the established rule of interpretation without a moral certainty that the 
meaning of the testator requires it, no interpretation can be safe till it has had 
the sanction of a court of justice. The law of real property in this country is 
now formed into a fine artificial system, full of unseen connections and nice de- 
pendencies, and he that breaks one link of the chain endangers the dissolution 
of the whole. Will it be said that when the testator’s intent is manifest, the 
law will supply the proper means to carry it into execution, though he may 
have used improper ones? ‘This would be turning every devise into an execu- 
tory trust, and would be arming every court of law with more than the juris- 
diction of a court of equity ; a power to frame a conveyance for the testator, 
instead of construing that which he has already framed.” 


VOL. II. FF 


433 


CHAP. 
XXXIV. 





A.D. 1756 
—1778. 


434 


CHAP. 
XXXIV, 


A.D. 1756 
—1778. 


Contro- 
versy re- 
specting 
the contra- 
dictory opi- 
nions given 
by Lord 
Mansfield. 


LIFE OF LORD MANSFIELD. 


writ of error to the court of dernier ressort, where he had a 
voice, and where his influence was unbounded. Such appre- 
hensions were entertained, that the contending parties agreed 
to an equal division of the property. 

But this compromise by no means put an end to the con- 
troversy between the Shelleyites and Anti-Shelleyites, which 
continued to rage with increased violence for years. Many 
pamphlets were written for and against the rule, and for and 
against the application of it to Perrin v. Blake. Sir James 
Burrow, the Master of the Crown Office in the Court of 
King’s Bench, and the reporter of Lord Mansfield’s de- 
cisions, tried to protect his patron from the attacks aimed at 
him, and wrote a warm panegyric upon him, describing the 
felicity of the times under such a Chief Justice, and ex- 
pressing wonder at the multiplicity of the business now 
brought before the Court, and the ability and celerity with 
which it was despatched, to the universal satisfaction of man- 
kind. This, unfortunately, excited the indignation of Mr. 
Fearne, the celebrated conveyancer, a man of as acute un- 
derstanding as Pascal or Sir Isaac Newton. He had been 
as much shocked by the disrespect shown to the rule in 
Shelley’s Case as if it had been a fundamental article of our 
holy religion, and he could not endure the praise bestowed 
upon the author of this deadly heresy. Therefore, in a new 
edition of his famous “ Essay on Contingent Remainders,” 
he introduced many sarcastic observations on this encomiast, 
which he thus concluded : — “ In forming an estimate of the 
times, we must look to the attributes of those men whose 
characters and conduct impart the tinge and impress the 
stamp. An inquiry of this kind necessarily opens with the 
question, Vir bonus est quis? To which we find the answer, 
Qui consulta patrum qui leges juraque servat.” He further, 
in a very offensive manner, asserted that Lord Mansfield, 
when Solicitor General, had himself deliberately given an 
opinion upon this very will, in conformity to law, “ that John 
the son took an estate tail; ” and he published the following 
as a copy of this opinion : — 

“ Upon the authority of the late determination in Coulson and 
Coulson, though I am.aware how far the expression here differs 


LIFE OF LORD MANSFIELD. 


from that case, I think the remainder to the heirs of the body of 
John will operate as a limitation to him in tail, which, by a re- 
covery properly suffered, he might dock. 

“ W. Murray. 

“ April 10, 1747.” 

This attack would soon have been forgotten if Lord 
Mansfield and his friends had taken no notice of it, or had only 
said that he had forgotten that he ever gave such an opinion, 
or that upon considering the matter he had seen reason to 
alter it; but Mr. Justice Buller soon after took occasion 
publicly to say, that “ he had the strongest reason to believe 
that no such opinion was ever given by the then Solicitor 
General, to whom it was ascribed,” — and Lord Mansfield, 
sitting by his side, himself observed — 

** Since it has been mentioned, I must take notice that it is most 
certainly true that I never gave any such opinion as that in print, 
nor any opinion at all on that will in the year 1747. Several 
opinions had been taken at different times, as events arose, and 
copies of them were furnished to the Court, on the argument of 
Perrin vy. Blake. There were three given by Sir Dudley Ryder, 
and three by myself. Of those given by myself, the first was 
before 1746, the second in that year, and the third in 1748. I 
have the copies still by me; and the third states that I had perused 
my two former opinions, dated so and so, and concurred there- 
with; viz. ‘that John only took an estate for life ;? which makes 
it impossible that I should have given a contrary opinion. The 
learned author has been too hasty in his publication, and must 
have been imposed upon.” 

This disavowal immediately produced a peppery pamphlet, 
in the shape of a letter from Mr. Fearne to Lord Mansfield, 
setting out a copy of the case for the opinion of Mr. Murray, 
to which the opinion of 10th April, 1747, was an answer, 
stating that he had received them from Mr. Booth, lately 
deceased, who, declaring that he had seen the original, had 
entered them in his collections, with other opinions to the 
same effect, for the instruction of his pupils, and that he had 
dedicated to the same Mr. Booth the edition of his “ Con- 
tingent Remainders” in which the disavowed opinion was 
first printed. He ironically added,— 


FR? 


435 


CHAP. 
XXXIV. 


A.D. 1756 
—1778. 


436 


CHAP. 
XXXIV. 





A.D. 1756 
—1778. 


LIFE OF LORD MANSFIELD. 


“T think it greatly to be regretted, my Lord, that my much 
respected friend, Mr. Booth, whom I have often heard comme- 
morate the honour he experienced in your Lordship’s intimacy 
and friendship during a course of several years antecedent and 
subsequent to the period which is said to have produced the opinion 
published by me, did not live to see his mistake corrected, a mis- 
take that seems to have stood so many years recorded in those 
books which were the constant resort of that gentleman’s profes- 
sional practice. A mistake I am confident it must have been, for 
Mr. Booth (I appeal to your Lordship’s own knowledge of that 
gentleman) never would have let me commit such a copy of your 
opinion to the press, and have admitted the dedication to himself of 
the book containing it, if he had thought its genuineness or accuracy 
in any degree questionable. Abstracted from the credit due to Mr. 
Booth’s verbal assurance, I could not, my Lord, conceive an idea of 
that gentleman’s recording a collection of spurious opinions, under 
imaginary names, as authorities. It was not for me to suspect the 
genuineness of copies thus authenticated ; and, though the event 
has disappointed the most conclusive appearances, yet I trust, my 
Lord, no man is or can be culpable for not reckoning on a possi- 
bility that betrays all grounds of belief, and starts into fact under 
the veil of incredulity. Such an event may serve, indeed, as a 
caution to the world against too implicit a credit, even to the most 
AUTHORITATIVE of human asseverations.” 

The Conveyancer was generally allowed to have gained a 
complete triumph over the Chief Justice, and many expressed 
their belief that the opinions which Lord Mansfield declared 
he had given were all imaginary; but it was afterwards 
clearly proved that he had at least given one in accordance 
with his judgment, for the original was produced, and the 
following is a copy of it: — 

* T think John Williams under the will of his father was entitled 
only to an estate for life, either in the real or personal estate. 
Whether he took a remainder in tail in the real estate after a 
limitation to Gale, or whether the heirs of his body were to take 
as purchasers, may admit of great doubt; but I incline to think 
the heirs of his body ought to be construed words of purchase ; 
and I ground my opinion upon the declaration with which the 
whole devise is introduced, which seems as strong as the words 


Jor life only in the case of Backhouse and Wells. 


“ 31 Jan. 1746. W. Morray.” 


LIFE OF LORD MANSFIELD. 


The undoubted fact seems to be that, in the hurry of busi- 
ness, he had signed and forgotten both opinions, — which 
were, perhaps, written by devils or deputies. His reputation 
was considerably tarnished by his judgment in Perrin vy. Blake, 
and still more so by the personal dispute which arose out 
of it.* 

But there is no sufficient ground for the general charges 
brought against him by malevolent or by narrow-minded 
persons — that in deciding civil rights he systematically dis- 
regarded the rules of the Common Law, and gave a preference 
to the Roman Law, to his own caprice, or to the doctrines of 
Equity. It may be proper here to give a specific refutation 
of these charges : — 

“In contempt or ignorance of the common law of England,” says 
JUNIUS, “you have made it your study to introduce into the court 
where you preside measures of jurisprudence unknown to English- 
men. ‘The Roman code, the law of nations, and the opinion of 
foreign civilians, are your perpetual theme; but who ever heard 
you mention Magna Cuarra or the Birt or Ricuts with ap- 
probation or respect? By such treacherous arts the noble sim- 
plicity and free spirit of our Saxon laws were first corrupted. 
The Norman conquest was not complete until Norman lawyers 
had introduced their laws and reduced slavery to a system. In- 
stead of those certain positive rules by which the judgments of a 
court of law should invariably be determined, you have fondly 
introduced your own unsettled notions of equity and substantial 
justice. Decisions given upon such principles do not alarm the 
public so much as they ought, because the consequence and ten- 
dency of each particular instance is not observed or regarded. In 
the mean time the practice gains ground; the Court of King’s 
Bench becomes a court of equity; and the judge, instead of con- 
sulting the law of the land, refers only to the wisdom of the court 
and the purity of his own conscience.” 

I am sorry to think of the countenance given to these 
misrepresentations by grave judicial authorities. Lord Eldon, 


* J tremble when I think how stupid my account of the affair may appear ; 
but the lay gents should know, that it was not only intensely interesting when it 
arose, but that now, when conversation flags among us lawyers, one of us, to 
cause certain excitement and loquacity, will say,—‘“ Do you think that Perrin 
v. Blake was well decided in the Court of King’s Bench?” or, “ Do you believe 
that Lord Mansfield really gave the opinion, in 1747, which Fearne imputes 
to him ?” 

FF 3 


437 


CHAP, 
XXXIV. 





A.D. 1756 
—1778. 


Charge of 
Junius 
against 
Lord 
Mansfield 
for trying 
to subvert 
the Com- 
mon Law. 
Noy. 14. 
1770. 


438 


CHAP. 
XXXIV. 


A.D. 1756 


—1773. 


Censure 
of him by 
Lord 


Redesdale. 


Vindica- 
tion of 
Lord 
Mansfield. 


His sup- 
posed pre- 
ference for 
the Civil 
Law. 


LIFE OF LORD MANSFIELD. 


Lord Kenyon, and Lord Redesdale, were accustomed to 
‘‘ shake their heads at Murray,” because he ventured to view 
questions of law scientifically, and, where he was not restricted 
by precedents, to deal out justice in a manner that would not 
have suggested itself to a mere formalist. Many passages 
might be selected from their judgments seeking to disparage 
him; but I shall content myself with the concentrated abuse 
of him by Lord Redesdale, when Chancellor of Ireland, in 
the case of French vy. Woolston.* 

“ Lord Mansfield had on his mind prejudices derived from his 
familiarity with the Scotch law, where law and equity are admi- 
nistered in the same courts, and where the distinction between 
them which subsists with us is not known ; and there are many 
things in his decisions which show that his mind had received a 
tinge on that subject not quite consistent with the constitution of 
England and Ireland in the administration of justice. Lord Mans- 
field seems to have considered that it manifested liberality of senti- 
ment to endeavour to give the courts of law the powers which are 
vested in equity ; that it was the duty of a good judge ampliare 
surisdictionem.” 

For the first charge, by Junrus, there is not the slightest 
colour or pretence. Lord Mansfield did not think (and no 
man qualified to form an opinion upon the subject can think) 
that the Common Law of England, as we find it in the old 
Text-books and Reports, was a perfect code adapted to the 
wants of a civilised and commercial nation. He did consider 
(as all qualified to form an opinion upon the subject must 
consider) the Roman Civil Law a splendid monument of 
human wisdom. But in no instance did he ever attempt to 
substitute the rules and maxims of the latter for those of the 
former where they are at variance. He made ample use of 
the compilation of Justinian, and of the commentators 
upon it, but only for a supply of principles to guide him upon 
questions unsettled by prior decisions in England. He de- 
rived similar assistance from the law of nations, and from the 
modern continental codes. But while he grafted new shoots of 
great value on the barren branches of the Saxon juridical tree, 
he never injured its roots, and he allowed this vigorous stock 


* 1 Scholes and Lefroy, 152. 


LIFE OF LORD MANSFIELD. 


to bear the native and racy fruits for which it had been justly 
renowned. . 

There is more plausibility in the charge that he neglected 
former decisions too much for his own notions of justice and 
expediency, — forgetting that he sat on the bench jus dicere, 
non jus dare —to administer the existing law, not to legislate. 
He certainly was on several occasions led astray by a desire 
to make the rules laid down by his predecessors bend to the 
necessities of an altered state of the social system. For 
example, he held that an action might be maintained against 
a married woman, as if she were single, where she had pro- 
perty settled upon her separately and her husband was not 
liable for the debt *; and this heresy was afterwards con- 
demned by more orthodox judges, who thought that human 
reason was not to be exercised in such a matter of faith. 
But he rarely showed any exception to his systematic respect 
for established forms, and his leading object was, by their 
assistance, to get at justice. Thus, in the King v. the Mayor 
of Carmarthen, he gave full effect to a mere technical objec- 
tion, but contrived a mode by which the merits of the case 
might nevertheless be inquired into, saying, “ General rules 
are wisely established for attaining justice with ease, cer- 
tainty, and despatch. But the great end of them being to 
do justice, the Court are to see that it be really attained. 
What I have suggested seems to be the true way to come 
at justice, and what we ought therefore to do; for the 
genuine test is ‘boni judicis ampliare juséitiam,’ not juris- 
dictionem, as it has been often cited.” { And here is the limit 
which he wisely laid down to the argument ab tnconvenienti : 
* Arguments of convenience and inconyenience are always 
to be taken into consideration when we are not tied down 
by erroneous opinions, which have prevailed so far in prac- 
tice that property would be shaken by any alteration of 
them.” § 

* See Ringsted v. Lady Lanesborough, 3 Doug. 197.; Carbott v. Poelnitz, 1 
Term Rep. 5. 

+ Marshall v. Rutton, 8 Term. Rep. 545. 

ye 1 Barr! 292. 


§ Burgess vy. Wheat, Sir W. Blackstone’s Rep. 123., in the decision of which 
he assisted Lord Chancellor Northington. 


rv 4 


439 


CHAP. 
XXXIV. 





A.D. 1756 
—1778. 
His sup- 
posed 
neglect 
of esta- 
blished 
forms and 
former 
decisions. 


440 


CHAP. 
XXXIV. 


A.D. 1756 
—1778. 
His sup- 
posed con- 
founding of 
legal and 
equitable 
jurisdic- 
tion. 


LIFE OF LORD MANSFIELD. 


But the charge which has stuck to Lord Mansfield, and, 
being often reiterated, has to a certain degree damaged his 
authority in Westminster Hall, is, that, sitting in the Court 
of King’s Bench, he neglected the boundary between legal 
and equitable jurisdiction. This is treated with levity by the 
uninitiated. “ As a judge,” says Lord Mahon, “several law- 
yers have objected to him that ‘he introduced too much eguzty 
into his court,’—a reproach which, till they explain it, sounds 
like a satire on their own profession.” * It is easy to explain 
how this would be a reproach if well founded. By the fun- 
damental constitution of our juridical system, whether for 
good or for evil, there are two sorts of courts — courts of law 
and courts of equity — in which, on the same facts, a different 
decision is given respecting rights and liabilities, — with a 
view of obtaining ultimately a satisfactory distribution of 
justice. In the nature of things there is a distinction be- 
tween the matters referred to the one set of courts and to 
the other ; — courts of law, for example, having cognizance 
where there are only two parties in whom is exclusively 
vested both the beneficial and the legal interest, — whereas 
courts of equity only can give adequate relief when there is 
a multiplicity of parties, and those in whom the legal right is 
vested are only trustees for others who ought to enjoy bene- 
ficially. The procedure by which suits between these different 
parties are conducted is by necessity essentially different, and 
to confound the rules by which they are to be conducted must 
produce confusion and mischief. Neither must Law be irre- 
gularly imported into a court of equity, nor Equity into a court 
of law. Had Lord Mansfield really attempted to make the 
Court of King’s Bench a court of equity, drawing to its cogni- 
zance disputes which could not be properly adjusted by the 
machinery belonging to it, and attempting to enforce the per- 
formance of fiduciary obligations, I should have thought that he 
deserved all the censure which has been heaped uponhim. But 
it will be found that he never sought, in one single instance, 
to exercise in a court of law jurisdiction which is not assigned 
by the constitution to a court of law, and for which a court 


* History, iv. 53. 


LIFE OF LORD MANSFIELD. 


of law is not fully competent. Equity practitioners, the 
mere creatures of habit, who think that our juridical proceed- 
ings, as they first beheld them, rest upon the eternal fitness of 
things, and are as unchangeable in their nature as the move- 
ments of the heavenly bodies, were shocked by seeing him 
save time and expense in the conduct of an action on a policy 
of insurance, by requiring a disclosure of papers essential to 
the trial, and by granting a commission to examine witnesses 
abroad — thereby obviating the necessity for filing a bill in 
the Court of Chancery to effectuate the very same object. 

But then he is accused of saying that “ whatever is a good 
execution of a power in equity should be considered good in 
law.” This charge is untrue. There are certain cases in which 
the validity of the execution of a power, when the required 
form has not been strictly observed, depends upen circumstances 
which a court of equity alone has the means of investigating, 
as where the power is executed for a valuable consideration ; 
and these he was always for leaving exclusively to a court of 
equity, considering the execution invalid at law. ‘There is 
another class of cases where, although the required form has 
not been observed, the execution is held void at law, and 
uniformly valid in equity, without looking beyond the power 
and the deed executing it. As where tenant for life being 
‘authorised, under a marriage settlement, to limit the premises 
to his wife for her life by way of jointure, he grants a term for 
ninety-nine years, determinable on her life, Lord Hardwicke, 
in the Court of King’s Bench, held that the term was void, 
not being warranted by the words of the power; and Lord 
Talbot, in the Court of Chancery, without any other circum- 
stance, held the term to be valid, and decreed the defendant 
to pay all the costs both at law and in equity. In such 
cases Lord Mansfield thought, very reasonably, that, an in- 
variable rule being laid down, the execution of the power 
should be supported at law as well as in equity.* 

The remaining alleged instance of his confounding law 
and equity, is a doctrine falsely imputed to him that in 
an action of ejectment the equitable estate shall prevail. 
This would, indeed, have been most mischievous, for nothing 


* Str. 992.; Burr. 1147.; 7 Term Rep. 480. 


441 


CHAP. 
XXXIV. 


A.D. 1756 
—1778. 


442 


CHAP. 
AXXIV. 





A.D. 1756 
—1778. 


His real 
love for 
common- 
law modes 
of proceed- 
ing. 


LIFE OF LORD MANSFIELD. 


has tended more to the security of title in England than 
keeping distinct the legal and equitable estate in land; and 
the result of an action of ejectment must not depend upon 
trusts, which a jury would be unfit to decide or to compre- 
hend. Lord Mansfield never thought for a moment that in 
ejectment there could be a recovery on an equitable title. 
He did declare “ that he and many of the judges had resolved 
never to suffer a plaintiff in ejectment to be non-suited by a 
term outstanding in his own trustee, or a satisfied term set 
up by a mortgagor against a mortgagee; but that they 
would direct the jury to presume it surrendered.” The true 
meaning of this resolution is that, where trustees ought to 
convey to the beneficial owner, it shall be left to the jury to 
presume that they have conveyed accordingly ; and where 
the beneficial occupation of an estate induces the probability 
that there has been a conveyance of the legal estate to the 
person who is equitably entitled to it, a jury may be directed 
to presume a conveyance of the legal estate. Lord Mansfield 
justly complained of the absurdity of English conveyancing 
by which the creation of terms is used for the purpose of 
charging the land, and these terms are still supposed to con- 
tinue when the purpose is served for which they were 
created; but he never for a moment countenanced the doc- 
trine that in a court of law the legal title must not prevail.* 
Such are the “ equitable doctrines of Lord Mansfield” which — 
offended the pedants of Westminster Hall. He never even 
showed any predilection for the peculiar modes of proceed- 
ing in equity, and he used manfully to insist upon the 
maxim that “ equity follows the law,” —as when he declared 
that equity had no right to support a lease granted by a 
mortgagor after the mortgage, or to treat commercial ques- 
tions differently, or to put a different construction on an act 
of parliament.tf Whatever JuNIuS might assert, it is well 
known that Lord Mansfield, instead of preferring pretorian 
process, by which law and fact were to be decided by a 
single judge, sincerely praised the Common Law in so far as 


* See Lade v. Halford, Bull. N. P.,110.; Weakly v. Bucknell, Cowp. 473. ; 


Yeo v. Rogers, 5 East, 138 n. 
t See 2 Evans, 404. 


LIFE OF LORD MANSFIELD. 


it separates law from fact, referring law to four judges, and 
fact to twelve jurymen; and that he himself often declared 
that he never passed his time more satisfactorily or agreeably 
than in trying mercantile causes by a special jury of mer- 
chants at Guildhall.* 

While libelled by Juntus and his followers, Lord Mans- 
field was justly complimented by BurkE, a_ philosophic 
statesman deeply imbued with the scientific principles of 
jurisprudence, who, haying been constantly opposed to him 
in politics, could have viewed his judicial career with no fa- 
vourable prepossessions, but having quoted his argument at 
the bar to show that a Hindoo should be admitted as a 
witness, when sworn according to the ceremonies of the 
Hindoo religion, thus proceeds : — 

* The sentiments of Murray, the Solicitor General, are of no 
small weight in themselves, and they are authority by being 
judicially adopted. His ideas go to. the growing melioration of 
the law by making its liberality keep pace with the demands of 
justice and the actual concerns of the world, —not restricting the 
infinitely diversified occasions of men, and the rules of natural 
justice, within artificial circumscriptions, but conforming our juris- 
prudence to the growth of our commerce and of our empire. This 
enlargement of our concerns he appears, in the year 1744, almost 
to have foreseen; and he lived to behold it.” 

To complete my general sketch of Lord Mansfield on the 
bench, I ought here to notice him as a Criminal Judge — 
although I shall afterwards have to give some details of state 
trials at which he presided. Sitting in the Crown Court he 
was, if possible, more remarkable for calmness, courtesy, 
and dignity. There was no complaint of any improper 
convictions before him, but he did not allow the guilty 
much chance of escaping, and, for the sake of example, he 
was somewhat severe in the punishments he _ inflicted. 
In cases of forgery he was always for carrying the capital 
sentence into execution. Attending the Council when the 
Perreaus had been found guilty, he strongly concurred in 


* He had great influence with juries, and hardly ever “lost the verdict ;” 7. e. 
the jury almost invariably found the verdict according to his direction. 


+ The year in which Omichund y. Barker was argued and determined, 1 
Atkyns, p. 40. 42. 


443 


CHAP. 
KXXIV. 


A.D. 1756 
—1778. 


Lord 
Mansfield 
as a Crimi- 


nal Judge. 


444 


CHAP. 
XXXIV. 


A.D. 1756 
—1778. 


Lord 
Mansfield’s 
merits in 
deciding 
Scotch 
appeals in 
the House 
of Lords. 


LIFE OF LORD MANSFIELD. 


rejecting the powerful intercession for mercy; and the fate 
of Dr. Dodd was afterwards ascribed to the pointed answer 
which he gave when the King asked whether, on account 
of the convict being a clergyman, his life might not be 
spared, — “If Dr. Dodd does not suffer the sentence of. the 
law, the Perreaus have been murdered.” * This feeling pro- 
ceeded by no means from any cruelty in his nature, but from 
the opinion then and long after very generally entertained by 
reflecting men, as well as by the multitude, that it was in- 
dispensably necessary, for our commercial credit, to visit 
forgery with death in every instance.f That he was not in 
advance of the age in which he lived, justifies regret but not 
censure. 

Before resuming my narrative, I have only to mention 
that for thirty years Lord Mansfield took the principal part 
in disposing of Scotch appeals in the House of Lords. For 
this task he was peculiarly well qualified by the familiar 
knowledge of Scotch law, in which a succession of Chan- 
cellors — Northington, Camden, and Bathurst — were utterly 
deficient. At the hearing of these cases he often sat as 
Speaker on the woolsack, and they were always disposed of 
according to his opinion. He was bold alike in his decision 
of feudal and of commercial cases; and he set the Scotch 
judges right in the construction of their own law, as well as 
of that which he was in the daily habit of administering. 
He was particularly obliged to restrain their devoted love of 
perpetuities, which English lawyers are trained to hate; and 
in the great Duntreath Case he reversed the unanimous 
judgment of the fifteen Lords of Session in favour of a 
defective entail, and thereby struck off the fetters of half 
the entailed estates in Scotland. At first there was deep 
grumbling against this decision in the Parliament House at 
Edinburgh; but it was afterwards allowed, even there, to 
have proceeded on sound feudal principles. 

* Holl. 148, 149. 

+ I myself once heard a judge, at Stafford, thus conclude an address to a pri- 
soner convicted of uttering a forged one-pound note, after having pointed out to 
him the enormity of the offence, and exhorted him to prepare for another 
world :—* And I trust that, through the merits and mediation of Our Blessed 


Redeemer, you may there experience that mercy which a due regard to the credit 
of the paper currency of the country forbids you to hope for here.” 


LIFE OF LORD MANSFIELD. 


Although, generally speaking, no lay lord interfered in 
the consideration of any Scotch appeals, the Douglas cause 
agitated all the members of the House, and was a subject of 
intrigue and canvass as much as a motion for an address of 
want of confidence to turn out a minister. Lord Mansfield, 
I think, took the right side in holding the claimant to be the 
true son of Lady Jane Douglas, not of the Paris rope-dancer; 
but his speech, as reported, is very inferior to his usual 
juridical efforts. This may be accounted for from the au- 
dience he addressed, who were more likely to be influenced 
by an appeal to their feelings and their prejudices than by a 
sound exposition of the principles of law involved in the 
case, and a masterly analysis of the evidence. * 

From this sketch, however imperfect, of Lord Mansfield as 
a Judge, I think it must be admitted that he was one of the 
greatest who has ever appeared; and that, while he impartially 
dealt out justice to the litigants who appeared before him, — 
by the enlightened principles which he laid down and the wise 
rules which he established he materially improved the juris- 
prudence of his country. This is surely fame little inferior 
to that of winning battles or making discoveries in science. 

I must now follow his political career, which was more 
checkered, and on which opinions are much more divided. 


* The chief argument he relied upon was, that Lady Jane Douglas, being of 
such illustrious descent, could not possibly have committed the fraud imputed 
to her. See Lives of the Chancellors, v. 290. 

+ I again apologise for introducing so many law cases into a memoir 
intended for general circulation ; but it should be recollected that the selection 
is made from many volumes of Reports, extending over a period of above thirty 
years, 


445 


CHAP: 
XXXIV. 





A.D. 1756 
—1778. 
The 
Douglas 
cause; ex- 
planation 
of Lord 
Mansfield’s 
bad speech 
upon it. 


446 REIGN OF GEORGE II. 


CHAPTER XXXYV. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD FROM HIS BEING 
MADE CHIEF JUSTICE TILL THE ACCESSION OF GEORGE III. 


CHAP. Lorp MANSFIELD had hardly been inaugurated as Chief 

XXXV. Justice of the King’s Bench when he was offered the higher 

Nov. 1756, dignity of Lord Chancellor. Lord Hardwicke, notwith- 

th to standing the efforts made to retain him, had insisted on 

Mansfield Yesigning along with the Duke of Newcastle; and the new 

of the great Ministers were much at a loss for a successor to him, there 
seal, : 2 

being no lawyer connected with them whom they could put 

forward in such a conspicuous position. It seems strange to 

us that they should have thought of the Attorney General 

of the Government they had overturned; but we must re- 

member that, in the reign of George II., all political men 

who were candidates for office were Whigs alike, professing 

nearly the same political principles, and separated only by 

personal associations and enmities; so that, if considerations 

of private honour permitted, a politician took what course he 

chose, without incurring obloquy. The crime of ratting 

from one great party to another was then unknown. As 

the ties that had united Lord Mansfield with the Duke of 

Newcastle and Lord Hardwicke were understood to be dis- 

solved, he might, without loss of character, have taken office 

with Pitt under the nominal headship of the Duke of De- 

vonshire. But he at once rejected the proposal. He easily 

foresaw that the present Government, which had _ neither 

court favour, nor parliamentary strength, nor popularity, 

must soon fall to pieces; and he was swayed by nobler con- 

siderations than the imprudence of exchanging an office which 

he held during life for one the tenure of which would be so 

precarious, — for all the glory to be acquired by perfecting 

our system of equitable jurisprudence had been already 


LIFE OF LORD MANSFIELD. 


reaped, and he was just entering upon the untried under- 
taking of adapting the administration of justice in our com- 
mon law courts to the new circumstances of the country. 
The great seal was therefore given in commission to Lord 
Chief Justice Willes, Mr. Justice Wilmot, and Mr. Baron 
Smyth. * 

On the meeting of Parliament Lord Mansfield took his 
seat in the House of Lords, where he was destined fully to 
support the reputation he had acquired as an able debater. 
There is only one volume of the Parliamentary History for 
twelve years, from 1753 to'1765, so that we have very few 
specimens of his oratory; but we know from contemporary 
memoirs that, not confining himself to legal questions, he 
was in the habit of speaking with powerful effect upon sub- 
jects connected with the general government of the empire. 
His maiden speech was drawn forth by a rather ludicrous 
incident, which we should consider harmless, and treat with a 
laugh. As a “ quiz” upon the Ministers,— on the day when 
Parliament assembled there was printed and sold in the 
streets a spurious King’s Speech, purporting to be “* His Ma- 
jesty’s most gracious Speech to both Houses of Parliament.” 
There being some talk of proceeding against the author, the 
King satirically observed, “I hope the man’s punishment 
will be of the mildest sort, for I have read both speeches, 
and, as far as I understand them, the spurious speech is 
better than the one I delivered.”t However, Lord Sand- 

* Walp. Mem. Geo. II., 106, 107. 

+ ‘Immediately after the King’s Speech at the commencement of the session, 
‘the Speaker acquainted the House that there were some new created Lords 
without, ready to be introduced.’ Whereupon, William Murray, Esq. Lord 
Chief Justice of His Majesty’s Court of King’s Bench, being, by letters patent 
dated the 8th day of November, in the 30th year of the reign of His present Ma~ 
jesty, created Lord Mansfield, Baron of Mansfield, in the County of Nottingham, 
was (in his robes) introduced between the Lord Willoughby, of Parham, and the 
Lord Edgecumbe (also in their robes), the Gentleman Usher of the Black Rod, 
Garter King at Arms, and the Lord Great Chamberlain of England, preceding. 

«“ His Lordship, on his knee, presented his Patent to the Speaker at the wool- 
sack, who delivered it to the Clerk; and the same was read at the table. 

* His Writ of Summons was also read, as follows :—‘ George the Second,’ ete. 

‘Then his Lordship came to the table, and, having taken the oaths and made 


and subscribed the Declaration, and also taken and subscribed the Oath of 


Abjuration, pursuant to the statutes, was placed on the lower end of the Barons’ 
bench.” —29 Journal, p. 5. 


¢ There had been serious differences about the speech between the King and 
Pitt, who had written it. 


447 


CHAP. 
XXXV. 





A.D. 1756. 


Dee. 2. 
He takes 
his seat in 
the House 
of Peers. 


His maiden 
speech 
there. 





April 5. 
Lord 
Mansfield 
Chancellor 
of the 
Excheq uer, 


REIGN OF GEORGE II. 


wich brought the matter before the House of Peers as a 
breach of privilege ; and Lord Hardwicke, still taking the 
lead, having in a dictatorial way moved “ that the delinquent 
parties should be imprisoned, and that the insolent document 
itself should be burnt in Palace Yard by the hands of the 
common hangman,” Lord Mansfield agreed that such an 
insult to the Crown and the two Houses, if taken notice of, 
could not be passed over or dealt with more leniently than 
proposed by the noble and learned Lord, who had so long 
presided over their deliberations: although he might perhaps 
have done better by moving the previous question or an 
adjournment. * 

Soon after, Lord Mansfield co-operated with Lord Hard- 
wicke on a more worthy occasion, in rejecting the bill sent 
up from the Commons to authorise the officers who had sat 
on Admiral Byng’s court-martial to disclose the deliberations 
which had taken place among them before they found him 
guilty and sentenced him to be shot; but he was in no 
respect answerable for the atrocity of carrying into execution 
a sentence which was illegal on the face of it, as it acquitted 
the accused of cowardice and all bad motive, and was accom- 
panied by an unanimous recommendation to mercy. t 

Before many months had elapsed, the Ministry was dis- 
solved; and, on the dismissal of Mr. Legge, Lord Mansfield 
actually became Chancellor of the Exchequer. This was 
according to the ancient usage by which, on a vacancy of 
this office, the seals of it are delivered to the Chief Justice 
of the King’s Bench for the time being, who does formal*acts 
till a successor is appointed. Such a provisional arrange- 
ment had not previously lasted more than a few days; but 
Lord Mansfield continued nominally finance minister for 


* 15 Parl. Hist., 779.; Walp. Mem. Geo. II., 109, 110.; Waldegrave’s 
Mem. 89. 

+ 15 Parl. Hist. 803—822. Horace Walpole represents that, in opposing 
the bill, he indecorously entered into the merits of the case, trying to rouse in- 
dignation against the prisoner, and concluding with the observation,—* that 
there had been times when a sea-officer had blown up his ship rather than be 
taken or retreat”—(Mem. Geo. II, vol. ii. p. 174.). But this is a palpable 
misrepresentation, proceeding from the writer’s spite against the Duke of New- 
castle, to whose influence he wishes to impute the execution of Byng. Lord 
Mansfield, at this time, was neither in, nor connected with, the Government, and 
could be under no bias against the side of mercy. 





LIFE OF LORD MANSFIELD. 


three months, and speculations began to be formed how, being 
a peer, he was to open the Budget. 

The whole of this interval was consumed by intrigues for 
the formation of a new Ministry, in which he acted a very 
prominent part. To him it was chiefly owing that the reins 
of government were finally intrusted to Pitt, his former 
rival; and that the war, which had hitherto been marked 
by defeat and disgrace, ended in conquest and glory. After 
long huckstering, the King had resolved that the terms on 
which alone Pitt would accept office should be rejected, and 
that Fox should be at the head of affairs as Chancellor of 
the Exchequer. Lord Mansfield was summoned to deliver 
up to him the seals of the office, and we have this statement 
from Lord Waldegrave of what then occurred : — 

*“ On the morning of the 11th June, Lord Chief Justice Mans- 
field was ordered to be at Kensington. The reason assigned was 
that he should deliver back the Exchequer seals, which had been 
in his possession from the time of Legge’s resignation; but the 
real business was of a different nature. The King discoursed 
with him a considerable time in the most confidential manner, and 
the conversation ended by giving Lord Mansfield full powers to 
negotiate with Pitt and the D. of Newcastle, his Majesty only 
insisting that Lord Temple should have no employment which 
required frequent attendance in the closet, and that Fox should be 
appointed Paymaster, which last demand did not proceed from any 
present partiality, but was the fulfilling of a former engagement. 
Before the final resolution was taken, his Majesty thought proper 
to take my advice. I told him I was clear in my opinion that our 
administration would be routed at the opening of the session; for 
that the D. of Newcastle had a considerable majority in the House 
of Commons, whilst the popular cry without doors was violent in 
favour of Mr. Pitt.” 

Lord Mansfield, on his return, wrote the following ac- 
count of his interview to Lord Hardwicke, with whom he 
was now co-operating very cordially : — 

“ Saturday, 4 o’clock. 

“ My Lord, —I am just come from Kensington, where I was 
by order to deliver the seal, & Mr. Fox was there to receive it. 
Upon my going into the closet, the King did me the honour to 

VOL. II. GG 


449 


CHAP. 
XXXYV. 


A.D, Lia ts 
Intrigues 
for the 
formation 
of a new 


Ministry. 


450 


CHAP. 
XXKYV, 


Ae lw ove 


Lord 
Chatham’s 
first go- 
vernment. 


Lord 
Mansfield 
again 
refuses the 
great seal. 


June 30, 


REIGN OF GEORGE II. 


talk to me of the present melancholy situation, & bid me tell him 
what I thought. I did so very sincerely, & made a great impres- 
sion. The result was, that I have brought the seal back, and am 
to speak to the D. of N. & y™ L’p. By good luck I met the D. of 
N. at Hyde Park corner. I stopped L* Rockingham’s resignation, 
which I never approved of; he followed me home, & now tells me 
that he stopped the D. of Rutland. Iam, at this moment, going 
to Guildhall, & give y™ L’p this trouble to know w* I may wait 
upon your Lordship if I get back before 4 an hour after 10. 

“ T beg your Lordship wou? not take the trouble to write, but 
to send me word how late I may venture to come if y™ L’p is to be 
at home to-night. 

“ T have the honour to be, 
“ With the greatest respect, 
“ Y™ L’p’s most obliged, hu. servant, 
“* MANSFIELD.” 

In consequence, the negotiation was renewed; and it was 
at last finally arranged that Fox, with the Paymastership, by 
which he might amass wealth, would give no further trouble ; 
that all jobbing patronage should be given to Newcastle; 
and that all real power should be intrusted to Pitt. 

A serious difficulty arose with respect to the office of 
Chancellor, and it was again earnestly pressed on Lord 
Mansfield, whose reluctance it was hoped might be overcome 
by confidence in the stability of the new Government. But 
he had been much gratified by the applause which he had 
received as a Common Law Judge, and he resolved not to yield 
to another a post for which he felt that he was so highly 
qualified. After a sordid chaffering with several eminent law- 
yers about peerages, pensions, and reversions, the great seal 
was given to Sir Robert Henley as Lord Keeper, who waived 
all conditions as to peerage, pension, or reversion ; — the two 
distinguished law dignitaries who superintended the nego- 
tiation being well pleased that their empire in the Upper 
House was not to be invaded by any new competitor. 

At last the new Administration was installed, and Lord 
Mansfield surrendered back to Mr. Legge the seals of Chan- 
cellor of the Exchequer. But, instead of returning, as he 
ought to have done, to the exclusive discharge of his judicial 


LIFE OF LORD MANSFIELD. 


duties, he unhappily assumed the character of a_ political 
judge by becoming a member of the Cabinet. 

“Lord Mansfield,” says Horace Walpole, “was called to the 
conciliabulum, or essence of the council; an honour not only un- 
common and due to his high abilities, but set off with his being 
proposed by Lord Hardwicke himself, who wished, he said, to get 
repose for three months in the country: Lord Mansfield would 
supply his place. It was about this time that this great Chief 
Justice set himself to take information against libels, and would 
sift, he said, what was the real liberty of the press. The occasions 
of the times had called him off from principles that favoured 
an arbitrary king —he still leaned towards an arbitrary govern- 
ment.” * 

All parties in the state being united, no opposition was 
made to an arrangement by which a Criminal Judge was 
to direct that prosecutions for treason and sedition, after- 
wards to come before him as judge, should be instituted, and 
was to preside at trials where the question would be “ whether 
a publication was libellous, or a just animadversion on the 
misdeeds of himself and his colleagues?” The administration 
of justice under such circumstances might be pure, but could 
not be free from suspicion; and the objection was obvious, 
that remarks upon the licentiousness of the press could not 
be made with proper freedom and effect by a judge who, 
although only performing his strict duty as an expounder 
of the law, might be denounced as a partisan trying to 
screen the imbecility or wickedness of the Government. It 
is a remarkable circumstance that the distinguished memoir- 
writer whom I have quoted, states, without any malice or 
satire, how Lord Mansfield henceforth began to yield to the 
arbitrary principles which he entertained, and meditated the 
measures against the press by which he afterwards incurred so 
much obloquy. Although this arrangement was cited as a 
precedent when Lord Chief Justice Ellenborough was intro- 
duced into the Cabinet by a Whig Government in the year 
1806, I must express a clear opinion that it was unconstitu- 
tional, and a strong hope that it will never be again attempted. 


* Walp. Mem. Geo. II., vol. ii. pp. 265, 266. 
t See Lives of the Chancellors, vol. vi. ch. clxxxv. 


@Ga 2 


451 


CHAP: 
XXXYV. 


AGDSL 7 Bile 
He is a 
member of 
the cabinet 


452 


CHAP. 
XXXYV. 


A.D. 1757 


—1760. 


REIGN OF GEORGE II. 


In the division of the spoil upon this occasion the patron- 
age of Scotland was assigned to Lord Mansfield. * 

Debating now went out of fashion, and for a whole session 
together there would not bea single division in either House. 
It might have been thought that, to gain notoriety, or to please 
constituents, or to gratify malice, some adventurous members 
would occasionally have opposed the measures of Government 
however wise and successful, and brought forward motions 
however small the minority to divide in favour of them; 
but all persons, in and out of parliament, seem to have been 
intoxicated by the successes of the war,—bells rang, and 


* The following is a letter from him, politely refusing the office of Lord 
President of the Court of Session to Lord Prestongrange, who, when Lord 
Advocate, had retired as a Puisne Judge :— 

“London, 13th March, 1760. 

“ My dear Lord,—I had yesterday the favour of yours, and am much obliged 
to you for doing me the justice to believe that I am very sincerely your friend 
and servt. I have seen no body of consequence as to the subject-matter of 
y" letter since I rec‘ it. . Your pretensions are extreamly well founded before 
you accepted a seat upon the bench; and since, I do assure you, report has 
been as favourable to you here as you cou’d desire. I think you can have no 
competitor except the Advocate; and I rather believe that he will have it, if 
he insists. 

“I am, with the greatest truth and regard, 
“ Y" most aff: hu: serv‘, 
MANSFIELD.” 


Lord Mansfield, when at the bar, had written the same individual the follow- 
ing letter of congratulation on his becoming Lord Prestongrange:— 


* Lincoln’s Inn, 8th Au: 1754. 

*¢ My dear Lord,— I am ashamed I have not thanked you before for your 
very flattering and obliging letter. As it is agreeable to you to succeed Lord 
Elchies, I wish you joy with all my heart. It is very happy for the people to 
have such offices so filled; tho’ I can’t help lamenting that we shall be deprived 
of the pleasure of y‘ company here, and the great benefit of y* assistance in 
the King’s service. I beg my compliments to Mrs, Grant; and hope you do 
me the justice to believe me, 

«© My dear Lord, 
«“ Yt most aff: & ob: hu: servt, 
“W. Murray.” 


Lord Prestongrange afterwards applied for the office of Lord Justice Clerk, 
and received the following rebuff, showing the writer to be tired of his impor- 
tunity : — 

“ Kenwood, 7th April, 1763. 

«“ My dear Lord,—I am sorry for the J. Clerk, tho’ he has lived to so great an 
age. By y" letter, which I have this moment received, I suppose he is no more. 
I certainly shall not be consulted upon the choice of his successor. Common 
report has long said that it was fixed. If I had any power, I would not fail to 
do justice to your pretensions, because I am, and have long been, with great 
truth, 

“ Your most aff: hu: servt, 
“ MANSFIELD,” 


LIFE OF LORD MANSFIELD. 


bonfires blazed, and nothing was listened to except praises 
of the genius of Pitt in planning conquests and the heroic 
bravery of Wolfe in achieving them. In our parliamentary 
annals, from the accession of James I. to the present time, 
there is nothing to be found approaching the unanimity and 
tranquillity which marked the last years of the reign of 
George II. 

In this interval Lord Mansfield, although always ready as a 
champion of the Ministers, had no occasion to defend them — 
and he spoke once, and once only, on a subject uncon- 
nected with party. A very useful bill had come up from 
the Commons, introduced by Mr. Pratt (afterwards Lord 
Camden), to improve the Habeas Corpus Act, by extending it 
to cases where parties were deprived of their liberty without 
any criminal charge being alleged against them. Blackstone’s 
Commentaries, lately published, had taught the doctrine that 
the penal code of England, as it then existed, although we 
consider it to have been very defective as well as very 
bloody, was an absolute piece of perfection, and for more than 
half a century afterwards any one who proposed to amend it 
was denounced as disaffected or visionary. I am concerned 
to say that Lord Mansfield, from whom better things might 
have been expected, stirred up a furious opposition to this 
bill, and threw it out.* According to a report of his speech 
by Dr. Birch, he said “that people supported it from the 
groundless imagination that liberty was concerned in it, 
whereas it had as little to do with liberty as the Navigation 
Laws or the act for encouraging the cultivation of madder ; 
that ignorance on subjects of this nature was extremely 
pardonable, since the knowledge of particular laws required a 
particular study of them; that the greatest genius, without 
such study, could no more become master of them than of 
Japanese literature without understanding the language of the 
country ; and that the writ of habeas corpus at common law 
was a sufficient remedy against all those abuses which this 
bill was supposed to rectify.” + However, in a more en- 


* June 4. 1758. 
+ 15 Parl. Hist. 900. Horace Walpole says,—“ He spoke for two hours 


GG 3 


453 


CHAP 
XXXYV. 


4.D. 1757 
—1760. 


He throws 
out the 
Habeas 
Corpus 
amend- 
ment bill. 


454 


CHAP. 
XXXV. 





A.D. 1758. 
Trial of 
De Hensey 
for high 
treason. 


REIGN OF GEORGE II. 


lightened age the bill was again introduced and received 
unanimous support in both Houses of Parliament.* 

Lord Mansfield was now called upon for the first time to 
preside at a state trial; and as the case was clear, and popular 
feeling ran with the prosecution, he passed through it without 
censure, although in reality he was both prosecutor and 
judge. Dr. Hensey, a physician, had, since the commence- 
ment of the war, been in the pay of the French as a spy, 
receiving from them an allowance of 1002 a year. Our 
Government intercepted his letters, arrested him, seized his 
papers, and indicted him for high treason. His trial came 
on at the bar of the King’s Bench before Lord Mansfield and 
the other judges of that court. 

The evidence was entirely documentary, consisting of 
letters written to the prisoner from agents of the French 
Government, which were found in his bureau, —and letters 
written by him to these agents, which were intercepted in 
the General Post Office in London, — showing that he was 
in the habit of giving information to the enemy of the sailing 
of our fleets, and that in telling them of our projected ex- 
pedition against Rochfort he advised them to prevent it by 
invading England. His counsel strongly objected that the 
papers found in his bureau, not being written by him, and 
possibly being disapproved of by him, were no evidence against 
him; and that the letters in evidence which he had written 
did not amount to an overt act of treason any more than if 
they had remained in his bureau, as they were still in London 
when they came into the possession of the English Govern- 
ment: 

“But Lord Mansfield said, that the papers found in the pri- 
soner’s bureau were clearly admissible evidence ; it would be for 
the jury to say what weight was to be attached to them, and to 


and a half, His voice and manner, composed of harmonious solemnity, were 
the least graces of his speech. I am not averse to own, that I never heard so 
much argument, so much sense, so much oratory, united. His deviation into 
the abstruse minutie of the law served but as a foil to the luminous parts of the 
oration, Perhaps it was the only speech which, in my time, had real effect, — 
that is, convinced many persons; por did I ever know how true a votary I 
was to liberty till I found I was not one of the number staggered by that 
speech.”— Mem. Geo. II, ii. 301, ; 
¢ 56 Geo III. ¢. 100. 


LIFE OF LORD MANSFIELD. 


consider how far the prisoner had repudiated them or acted upon 
them. The sending off by the post a letter communicating in- 
telligence to the enemy in time of war, he held to be a clear overt 
act of high treason, although it never reached its destination, 
the crime charged in the indictment being the compassing of the 
King’s death, which, according to all the authorities, was proved 
by writing and sending offa letter coveying intelligence to the 
King’s enemies, whether or not it reached its destination.” _ 

The other judges concurring, the prisoner was found guilty, 
and the Chief Justice pronounced sentence of death upon 
him,—but he was afterwards pardoned, and there was reason 
to think that, as usual, he had acted as a spy on both sides.* 

During the remainder of the reign of George II., Lord 
Mansfield did not appear before the public except in the ordi- 
nary discharge of his official duties. The House of Lords 
only met to adjourn—and when the King’s grandson, the 
Prince of Wales, on coming of age, took his seat, and wished 
to try his powers of oratory in that assembly, it was 
found impossible to get up a debate for his maiden speech. 
Cabinets, when held, Lord Mansfield regularly attended, but 
they were very rare, and being chiefly for the consideration 
of domestic affairs, then of small importance, they at- 
tracted little notice.t Mr. Secretary Pitt, the Prime 
Minister, discussed in his own bosom all measures respecting 
foreign policy and the conduct of the war, and communicated 
his resolutions only to the functionaries who were to carry 
them into execution.{t Till the commencement of the new 
reign, Lord Mansfield’s seat in the Cabinet was a mere 
honorary distinction. But from that era he acquired great 
political consequence, and for fifteen years to come there was 
probably no individual who more influenced the counsels of 
the nation both at home and abroad. 


* 19 St. Tr. 1342—1382.; Harris’s Life of Lord Hardwicke, iii. 170.; 
Walp. Mem. Geo. IL, ii. 309. 

t It is not very generally known, that both Lord Hardwicke and Lord 
Mansfield were cabinet ministers during Lord Chatham’s first administration. 

+ Not always even to them, for he would make the Lords of the Admiralty 
sign papers which they were not allowed to read. 


é64 


455 


CHAP, 
XXXYV. 





A.D. 1758 
—1760. 


End of the 
reign of 
George IT, 


456 


CHAP. 
XXXVI. 





Oct. 25. 
1760. 
Accession 
of George 
LT; 


Lord 
Mansfield 
reappoint- 
ed Chief 
Justice. 


Liaison 
between 
Lord 
Mansfield 
and Lord 
Bute. 


REIGN OF GEORGE Ui. 


CHAPTER XXXVI. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE 
DISAPPEARANCE OF JUNIUS. 


Hirnerto Lord Mansfield had always called himself a 
Whig, although entertaining and not disguising what are 
considered Tory principles; but now that on the accession 
of George IIT. there was to be a new distribution of parties, 
and that the Tory flag was openly hoisted by royalty, he 
rallied under it. 

According to the construction put upon the Act of Settle- 
ment, which enacted that judges should hold their offices 
during good behaviour instead of during pleasure, he might 
have been removed on the demise of the Crown; but he 
was joyfully reinstated, and he soon became a special 
favourite of the new Sovereign. His party had been always 
opposed to Leicester House, and he had been looked upon 
with dislike by all its adherents, but no sooner did Lord 
Bute come forward with pretensions to be Prime Minister 
than there was a secret sympathy between them. They were 
countrymen, they equally cherished the doctrine of the divine 
right of kings, and they both hated Pitt. While Bute im- 
patiently coveted the possession of Pitt’s power, Murray 
enviously beheld the dazzling ascendancy attained by the man 
whom he had often beaten since their poetical struggle at 
Oxford. ‘ 

Without any quarrel with the falling minister, or formal 
treaty with his successor, the sagacious Chief Justice showed 
a growing coldness towards the one, and cordiality towards 
the other, —not concealing his satisfaction when Lord Bute 
was made a Secretary of State in the room of Lord Holder- 
nesse and was introduced into the Cabinet. At last the 


LIFE OF LORD MANSFIELD. 


crisis arrived, and it was necessary to take a decided part 
either with the one or the other. Pitt was now obliged to 
bring forward great measures in a very different fashion from 
that adopted by him at the end of the last reign. Having 
certain intelligence of the family alliance between the several 
branches of the House of Bourbon, he had formed a magni- 
ficent scheme of at once declaring war against Spain, sweeping 
the ocean of her ships, and conquering the richest of her 
colonies. There seems every reason to believe that if 
promptly executed it would certainly have succeeded —but 
he was obliged to submit it to acabinet. Mansfield took part 
with Bute, and the Great Commoner, being outvoted, declared 
that “he would not remain in a situation which made him 
responsible for measures he was no longer allowed to guide.” 
From that hour Lord Bute was considered Prime Minister, 
although it was some time before he could be placed at the 
head of the Treasury, from the adhesiveness of the Duke of 
Newcastle, who was willing to submit to any degradation 
rather than be driven to resign. 

The new chief acted most cordially with Lord Mans- 
field, who had so essentially helped bis elevation ; and their 
proceedings were very prudent. Furious popular discontent 
wasapprehended from the dismissal of the GREAT COMMONER, 
and even insurrections were talked of in the city of London 
and other great towns. 


“Hi motus animorum, atque hee certamina tanta, 
Pulveris exigui jactu compressa quiescunt,” 


They advised the King to offer him a pension and a peerage 
for his wife. The offer was accepted, and the same Gazette 
announced his resignation and the honours and rewards 
heaped upon him. For a space he not only ceased to be 
formidable, but was denounced by his former admirers as 
sordid and corrupt.* ‘Oh that foolishest of men!” cried 
Gray. “What!” exclaimed Horace Walpole, “to blast 
one’s character for the sake of a paltry annuity and a long- 


* « These,” said Burke, “‘ were the barriers that were opposed against that 
torrent of popular rage which it was apprehended would proceed from this re- 
signation. And the truth is, they answered their end perfectly : this torrent for 
some time was beaten back,—almost diverted into an opposite course.” — Annual 
Register, 1761, p. 45. 


457 


CHAP. 
XXXVI. 


A.D. 1760, 
1761. 


Sept. 18. 
1761. 


Resigna- 
tion of 
Lord 
Chatham. 


458 


CHAP. 
XXXVI. 


A.p. 1761, 


1762. 


Prudent 
advice 
given by 
Lord 
Mansfield 
to Lord 
Bute. 


Rumour 

that Lord 
Mansfield 
wished to 
be Chan- 

cellor. 


Sept. 1762. 


REIGN OF GEORGE III. 


necked peeress!” The tide ran so strong against the once 
Great Commoner, that he was obliged to publish a letter 
addressed to his friend Alderman Beckford, in which he 
complains of being “ grossly misrepresented” and “ infa- 
mously traduced.” 

While counselled by Mansfield, Lord Bute likewise be- 
haved very prudently in opening the negotiation for peace, 
and in framing the preliminaries, which, though scouted by 
the ex-Premier, who was for still further humbling the 
House of Bourbon, were generally considered honourable 
and advantageous, and were approved of by a vast majority 
in both Houses of Parliament. 

At this time it was believed by many, that Lord Mans- 
field, feeling the incompatibility of political power with his 
present office, desired to hold the great seal; hoping thus to 
be actual prime minister, while his countryman was at the 
head of the Treasury. ‘The apprehension of such an arrange- 
ment caused deep uneasiness in the Hardwicke family, where 
a strong desire existed that Charles Yorke should be placed 
in the “marble chair,” to which his father had added such 
lustre. In a long letter written by him to the ex-Chancellor, 
giving an account of an interview on the subject* with Lord 
Lyttleton, — after pointing out the objections to a Scotch- 
man being prime minister, and the proposal that he himself 
should have the great seal, he thus shows his jealousy and dis- 
like of the Chief Justice of the King’s Bench: — 

“T added, with respect to the thing itself, that if I could sup- 
pose the King would ever do me the honour hinted, I should not 
be afraid to accept it, tho’ I should think it too early, and in many 

* This interview took place in consequence of a letter from Lord Hardwicke 
to Charles Yorke, containing the following information :—*“ Lord Lyttleton told 
me that, before he went last to Hagley, his friend Lord Egremont kad said 
much to him on your subject; that Lord Chancellor (Northington) had com- 
plained to him of his health, and that he could not go on in his office; that 
he wished the King and his servants would be thinking of a proper successor, 
&c.; that, on this occasion, his Majesty had mentioned you, and that you stood 
high in his opinion. Lord Lyttleton asked his Lordship how Lord Mansfield 
stood in that respect? to which Lord Egremont had answered, that the King 
was offended with him for so frequently declining to give his opinion in council, 
particularly at the last meeting at Lord President’s, at which the Duke of 
Devonshire, Duke of Neweastle, and I were present. I understood that this 


was thrown out as a lure to me, being of so great consequence to my family.”— 
Harris’s Life of Lord Hardwicke, iti, $02. 


LIFE OF LORD MANSFIELD. 


respects not eligible at this time. I enquired how L* Mansfield 
stood, & whether he might not be thought of. He answered, that 
L4 M. would feel nothing personally as to me, because he would 
see that it was impossible for him to have the great seal, rebus 
sic stantibus. His Lordship answered to a different point from 
what I meant. I meant to draw from him what he did not men- 
tion of the King’s displeasure. For as to Lord M.’s feelings, they 
would be strong, but of no real consequence. His manner has 
been offensive & unpopular in Westm™ Hall; &, as St Fr. Bacon 
says, perhaps I may improve whilst others are at a stand.” 

Few, however, will believe that the wary Mansfield ever 
had such a fit of wild ambition, or could have been for a 
moment blind to the insuperable difficulties which his sup- 
posed scheme would have had to encounter. 

For some reason that has never been explained, and which 
it would be vain now to conjecture, there was, soon after, 
a great coldness between the two Scotchmen, who, by a 
singular concatenation of improbable circumstances, had 
actually guided the destinies of England; and although 
the Chief Justice still continued a member of the Cabinet, 
the Prime Minister listened very little to his advice. Whe- 
ther on this account I have no means of knowing, but cer- 
tainly henceforth, he who had appeared a prudent states- 
man, likely long to enjoy power, was regarded as a minion of 
fortune, doomed to a speedy fall. He was at no pains 
decently to veil the unbounded power to which he had at 
once been raised by court favour, without ever before having 
been in office or made a speech in parliament; he insisted on 
all preferment passing through his own hands; and although 
aware of the jealousy excited by allusions to the place of his 
birth, he wantonly inflamed it by removing many deserving 
subordinates in the public offices from situations usually 
held for life, and conferring them on his needy countrymen. 
Instead of allowing the public to see the falsity, and to be 
disgusted with the ribaldry, of Wilkes’s paper, the “ Norr 
Briton,” set up against him, he seems to have resolved to 
verify its assertions while he wished to inflict upon the author 
the heaviest penalties of the law. Finally, he threw the 
whole of England into a flame by rashly bringing forward 


459 


CHAP. 
XXXVI. 


A.D. 1762. 


Lord Bute’s 
differences 
with Lord 
Mansfield, 
and subse- 
quent im- 
prudence. 


ON Po ern 


460 


CHAP. 
XXXVI. 





A.D. 1762, 
1763. 


April 
i kepee 
Lord Bute 


resigns. 


Lord 
Mansfield 
continues a 
member of 
the Cabi- 
net. 


May 6. 
1763. 


REIGN OF GEORGE III. 


the cider tax, and obstinately persisting in it. Still he was 
in the possession of royal favour and parliamentary majorities, 
although his colleagues ventured to remonstrate with him in 
private, and Lord Mansfield even publicly threw out some 
hints intimating that there was not an entire coincidence of 
opinion between them. It was generally thought that he 
would long enjoy power. 

But all of a sudden he voluntarily resigned. In a letter 
which he wrote at the time, he mainly imputed his fall to the 
same man who had contributed to his elevation. “ Single,” he 
said, “ in a cabinet of my own forming, no aid in the House 
of Lords to support me except two peers (Lords Denbigh 
and Pomfret), both the Secretaries of State silent, and the 
Lord Chief Justice, whom I myself brought into office*, 
voting for me, yet speaking against me, the ground I tread 
upon is so hollow, that I am afraid not only of falling myself, 
but of involving my royal master in my ruin. It is time for 
me to retire.” f 

Lord Mansfield continued a member of the Cabinet when 
George Grenville was placed at the head of the Treasury, 
but it seems hardly credible that he should have been pre- 
sent at its deliberations when the proceedings were ordered 
to be taken against the printers and publishers of the North 
Briton, No. 45.:—1. Those proceedings were so likely to 
come before him judicially, that he must have been struck 
with the impropriety of taking part in originating them. 2. 
The proceedings were so illegal and indiscreet, that, if pre- 
sent, he must have protested against them. 

The parties aggrieved avoided the Court of King’s Bench, 
and sought redress in the Court of Common Pleas from 
Lord Chief Justice Pratt, who was upon the eve of ac- 
quiring the greatest degree of popularity ever enjoyed by 
an English judge. He liberated Wilkes from the Tower, on 
the ground of parliamentary privilege ; and, declaring general 

* T do not perfectly understand the meaning of this; but he must be re- 
ferring to Lord Mansfield. Pratt was made Chief Justice soon after the accession 
of George III., but was not created a peer till July 1765, by the Rockingham 
administration ; so that be could neither have voted nor spoken while Lord 


Bute was minister. 
t+ Adolphus, i, 117. 


LIFE OF LORD MANSFIELD. 


warrants to be illegal, he obtained from juries very heavy 
damages for those who had been arrested, and whose papers 
had been seized on the suspicion that they were concerned in 
printing or publishing the No. of the North Briton which 
had been singled out for prosecution.* 

The legality of general warrants, however, was brought 
before Lord Mansfield by the law officers of the Crown, who, 
in a case of Leach vy. Money, tendered a bill of exceptions to 
Lord Camden’s direction to the jury, that the general war- 
rant against the printers and publishers of the North Briton 
afforded no justification for the defendant, a king’s messenger, 
in arresting the plaintiff under it. f 

The question having been very elaborately argued by the 
Attorney General De Grey on the one side, and Dunning 
(who now first distinguished himself) on the other, Lord 
Mansfield, although there was to be a second argument, 
stated the impression then upon his mind in favour of the 
doctrine laid down by Chief Justice Pratt : — 


“ We are to consider,” said he, “the validity of a warrant in 
which. no person is named or described. The common law, in 
many cases, gives authority to arrest without warrant, more espe- 
cially when taken in the very act; and there are many cases 
in which particular statutes have given authority to apprehend 
under general warrants — as warrants to take up ‘loose, idle, and 
disorderly persons.” But here it is not contended that there could 
be an arrest at common law without warrant, or that any statute 
gives a warrant in this general form. ‘Therefore we must see 
whether, by the common law, such a warrant is valid ? At pre- 
sent it seems to me unfit that the information as to a particular 
individual having committed the offence specified in the warrant 
should be received by the officer, and that he, in his discretion, 
should determine whether it is sufficient. The magistrate ought 
to decide and give certain directions to the officer ; the one acting 
judicially, the other ministerially. So it stands on reason and 


* 2 Wilson, 151—160.; 19 St. Tr., 982—-1002.; 2 Wilson, 206—244. 

t+ Sir James Burrow, with very amusing minuteness, describes the cere- 
mony of Lord Chief Justice Pratt coming in person into the Court of King’s 
Bench, and acknowledging his seal to the bill of exceptions; thus concluding ; 
— “The Lord Chief Justice of the Common Pleas immediately retired, 
without sitting down; and the Lord Chief Justice of this Court attended him 
till he was got past the Puisne Judge, but not quite to the door of the Court.”— 


(3 Burr. 1694.) _ Nowhere is etiquette so strictly attended to as in Westminster 
Hall. 


461 


CHAP. 
XXXVI. 


A.D. 1763 
—1765. 


General 
warrants, 


Nov. 1765. 


462 


CHAP. 
XXXVI. 





ADS 163; 
1764. 


Wilkes’s 
outlawry. 


Jan, 1764. 


February, 


REIGN OF GEORGE III. 


convenience. Then as to authorities. Hale and all others hold 
such an uncertain warrant void, and there is no case or book to 
the contrary. It is said ‘the usage sanctions general warrants,’ 
and many such have been issued since the Revolution down to this 


time. But a usage to grow into law must be a general usage, 


communiter usitata et approbata ; and which, after a long con- 
tinuance, it would be mischievous to overturn. This is only the 
usage of a particular office — the Secretary of State’s — and con- 
trary to the usage of all other justices and conservators of the 
peace. However, let it stand over for a further argument.” 

When the case again came on, Charles Yorke, who in the 
mean time had been promoted to be Attorney General, wish- 
ing to avoid a judgment against the Crown on the merits, 
admitted that a formal objection which had been made to the 
defence must prevail, and nothing more was said about 
GENERAL WARRANTS; but ever since they have been con- 
sidered illegal, and credit is due to Lord Mansfield for sup- 
porting principle against precedent in this case, considering 
that the warrant in question had been issued by his own 
colleague.* 

He had a still nobler opportunity of raising his fame in 
reversing the outlawry of Wilkes. This profligate dema- 
gogue, after being liberated from the Tower, seeing no 
immediate means of exciting public sympathy, withdrew to 
Paris, and domiciled himself there. In the mean time, two 
criminal informations were filed against him by the law 
officers of the Crown; one for writing and publishing the 
famous No. 45. of the NortuH Briron, and the other for 
writing and publishing an obscene and impious poem called 
an Essay on Woman. Even before trial he was expelled 
the House of Commons for these alleged offences, and he was 
afterwards found guilty on both informations in his absence. 
Process of outlawry then issued against him, and, as he did 
not appear to receive sentence, he was actually outlawed. 

But on the dissolution of Parliament in the spring of the 
year 1768, the nation being frenzied by faction, he thought 
he might turn the extreme unpopularity of the Government 
to his own advantage, and, coming over from France while 


* 19 St. Tr. 1001—1028.; 3 Burr, 1692—1742. 


LIFE OF LORD MANSFIELD. 


still an outlaw, he presented himself as a candidate to repre- 
sent the city of London in the House of Commons. 
Although defeated there, he was returned by an immense 
majority for the county of Middlesex. Still it was necessary, 
before he could take his seat, that the outlawry should be 
reversed, and for this purpose he appeared in person in the 
Court of King’s Bench. After several irregular proceedings, 
which he attempted with a view of entrapping or over- 
awing the judges, they committed him to prison till the 
validity of his outlawry could be decided in due form of law, 
and they very properly refused several applications which 
were made to bail him. The mob were highly exasperated 
by the captivity of their idol; attempts were made to rescue 
him; there were dangerous riots in the metropolis; some 
lives were lost; and dreadful denunciations and threatenings 
were poured forth against Lord Mansfield. 

The hearing of Wilkes’s case occupied several days; West- 
minster Hall, Palace Yard, and the surrounding streets being 
filled by an innumerable multitude of Wilkites, ready to 
celebrate his triumph or to revenge his defeat.* At last 
judgment was to be pronounced. 

Lord Mansfield began, and in a very luminous manner 
went over the various grounds on which it had been argued 
by the defendant’s counsel that the outlawry should be re- 
versed, —all turning on mere technical learning,—and he 
showed satisfactorily that none of them were well founded. 
Jt was thought that he had nothing more to observe, except 
that the outlawry must be affirmed, when he thus proceeded 
in a strain of calm and dignified eloquence for ever to be had 
in admiration : — 

*« These are the errors which have been objected ; and, for the 
reasons I have given, I cannot allow any of them. It was our 
duty, as well as our inclination, sedulously to consider whether 
upon any other ground, or in any other light, we could find an 
informality which we might allow with satisfaction to our own 
minds, and avow to the world. 

“ But here let me pause ! — It is fit to take some notice of the 


* No one in secret condemned their proceedings more than Wilkes himself; 
and he used afterwards to say that “he never was much of a Wilkite.” 


June 8, 
1768. 


Lord 
Mansfield’s 
judgment 
reversing 
the out- 
lawry, 


464 


CHAP. 
XXXVI. 





A.D. 1768. 


REIGN OF GEORGE III. 


various terrors being held out; the numerous crowds which have 
attended and now attend in and about the hall, out of all reach 
of hearing what passes in court; and the tumults which, in other 
places, have shamefully insulted all order and government. 
Audacious addresses in print dictate to us, from those they call 
the people, the judgment to be given now, and afterwards upon 
the conviction. Reasons of policy are urged, from danger to the 
kingdom by commotions and general confusion. 

“Give me leave to take the opportunity of this great and 
respectable audience, to let the whole world know that all such at- 
tempts are vain. Unless we have been able to find an error which 
will bear us out to reverse the outlawry, it must be affirmed. The 
constitution does not allow reasons of state to influence our judg- 
ments. God forbid it should! We must not regard political 
consequences, how formidable soever they might be; if rebellion 
was the certain consequence, we are bound to say ‘ Fiat justitia, 
ruat celum.’ The constitution trusts the King with reasons of 
state and policy; he may stop prosecutions; he may pardon 
offences ; it is his to Judge whether the law or the criminal should 
yield. We have no election. None of us encouraged or ap- 
proved the commission of either of the crimes of which the de- 
fendant is convicted : none of us had any hand in his being pro- 
secuted. As to myself, I took no part (in another place) in the 
addresses for that prosecution. We did not advise or assist the 
defendant to fly from justice; it was his own act, and he must 
take the consequences. None of us have been consulted, or had 
anything to do with the present prosecution. It is not in our 
power to stop it ; it was not in our power to bring it on. We 
cannot pardon. We are to say what we take the law to be; if we 
do not speak our real opinions, we prevaricate with God and our 
own consciences. 

“ T pass over many anonymous letters I have received. Those 
in print are public; and some of them have been brought judi- 
cially before the Court. Whoever the writers are, they take the 
wrong way. Iwill do my duty unawed. What am I to fear ? 
That mendax infamia from the press, which daily coins false facts 
and false motives? The lies of calumny carry no terror tome. I 
trust that my temper of mind, and the colour and conduct of my 
life, have given me a suit of armour against these arrows. If, 
during this King’s reign, I have ever supported his government, 
and assisted his measures, I have done it without any other reward 
than the consciousness of doing what I thought right. If I have 
ever opposed, I have done it upon the points themselves ; without 


LIFE OF LORD MANSFIELD. 


mixing in party or faction, and without any collateral views. I 
honour the King, and respect the people; but many things ac- 
quired by the favour of either, are, in my account, objects not 
worth ambition. I wish popularity; but it is that popularity 
which follows, not that which is run after; it is that popularity 
which, sooner or later, never fails to do justice to the pursuit of 
noble ends by noble means. I will not do that which my con- 
science tells me is wrong upon this occasion, to gain the huzzas 
of thousands, or the daily praise of all the papers which come from 
the press: I will not avoid doing what I think is right, though it 
should draw on me the whole artillery of libels ; all that falsehood 
and malice can invent, or the credulity of a deluded populace can 
swallow. I can say, with a great magistrate, upon an occasion 
and under circumstances not unlike, ‘ Ego hoc animo semper fui, 
ut invidiam virtute partam, gloriam, non invidiam putarem.’ 

“ The threats go further than abuse: personal violence is de- 
nounced. I do not believe it ; it is not the genius of the worst of 
men of this country, in the worst of times. But I have set my 
mind at rest. The last end that can happen to any man never 
comes too soon, if he falls in support of the law and liberty of his 
country (for liberty is synonymous to law and government). Such 
a shock, too, might be productive of public good; it might awake 
the better part of the kingdom out of that lethargy which seems 
to have benumbed them; and bring the mad part back to their 
senses, as men intoxicated are sometimes stunned into sobriety. 

“ Once for all, let it be understood that no endeavours of this 
kind will influence any man who at present sits here. If they had 
any effect, it would be contrary to their intent; leaning against 
their impression, might give a bias the other way. But I hope, 
and I know, that I have fortitude enough to resist even that weak- 
ness. No libels, no threats, nothing that has happened, nothing 
that can happen, will weigh a feather against allowing the defend- 
ant, upon this and every other question, not only the whole ad- 
vantage he is entitled to from substantial law and justice, but 
every benefit from the most critical nicety of form, which any 
other defendant could claim under the like objection. The only 
effect I feel from such outrages is an anxiety to be able to ex- 
plain the grounds upon which we proceed; so as to satisfy all 
mankind that a flaw of form given way to in this case, could 
not have been got over in any other.” * 








* Lord Brougham says, —“ It would be difficult to overrate the merit of 
the celebrated address to the public, then in a state of excitement almost un- 


VOL. II. H H 


465 


CHAP. 
XXXVI. 


A.D, 1768. 





St en 


466 


CHAP. 
XXXVI. 


AsDe 1770; 


Lord 
Mansfield 
retires 
trom the 
Cabinet. 


Disputes 
with 
America, 
A.D. 1765 
—1768. 


REIGN OF GEORGE III. 


He then pointed out the fatal objection to the proceedings 
which had escaped the counsel for the defendant, and judg- 
ment was given that the outlawry should be reversed. This 
was heard with reverential silence. 

Wilkes had still to be sentenced upon the two convictions, 
and on a subsequent day he was fined 1000. and ordered to 
be imprisoned a year and ten months. He brought a writ of 
error in the House of Lords, contending that the informations 
had not been duly filed, and that Lord Mansfield had im- 
properly allowed them to be amended; but the judgment of 
the Court of King’s Bench was affirmed; and, however 
much he might be aggrieved by the resolutions of the House 
of Commons unconstitutionally disqualifying him from being 
a representative of the people, he was bound to admit that 
justice was ever purely and impartially and mildly admi- 
nistered to him in the courts of law. * 

Although Lord Mansfield had ceased to be a member of 
the Cabinet, he by no means withdrew from politics. Yet he 
never allied himself with any opposition party. Avowing 
himself to be a friend to prerogative, he attacked all measures 
that had an over-liberal aspect, from whatever quarter they 
came; and while his principles were called arbitrary, it was 
allowed that he maintained them with independence. 

When the disputes began with America, he boldly con- 
tended both for the justice and the expediency of the tax 
imposed by the mother country on the colonies towards the 
expense of defending them. This opinion is now considered 
erroneous, but all must agree with him in condemning the 
vacillating policy then pursued, by which resistance was en- 
couraged, repose and mutual confidence became impossible, 
insult was offered when injury was redressed, and placable 


petitioners were turned into inveterate rebels. 


The original Stamp Act, which was destined to produce such 


paralleled, with which he closed his judgment upon the application to reverse 
Wilkes’s outlawry. Great elegance of composition, force of diction, just and 
strong but natural expression of personal feelings, a commanding attitude of 
defiance to lawless threats, but so assumed and so tempered with the dignity 
which was natural to the man, and which here, as on all other occasions, he sus- 
tained throughout, all render this one of the most striking productions on 
record,” — Statesmen, i. 121. 

* 4 Burr. 2527—2578.; 19 St. Tr. 1075—1188. 


LIFE OF LORD MANSFIELD. 


mighty effects, when introduced by George Grenville passed 
both Houses almost without an observation, and was unknown 
to the English public till they heard of the determination 
to disobey it. The first grand debate on the subject seems 
to have been when the Rockingham administration proposed 
resolutions for repealing it and for asserting the right to 
impose it. Lord Camden made his maiden speech in the 
House of Lords, supporting the first, but strongly con- 
demning the last not only as imprudent but false;— allowing 
the supremacy of the British legislature over the colonies for 
all puposes except taxation, but insisting that taxation and 
representation must go together, and that, the colonies being 
unrepresented in our House of Commons, any attempt to 
impose a tax upon them was illegal. Lord Mansfield revised 
and published his powerful speech in answer. Thus he pro- 
pounded his doctrine of virtual representation, which was 
afterwards so much relied upon: — 

* There can be no doubt but that the inhabitants of the colonies 
are represented in parliament, as the greatest part of the people of 
England are represented; among nine millions of whom, there are 
eight who have no votes in electing members of parliament. Every 
objection, therefore, to the dependency of the colonies upon par- 
liament, which arises to it upon the ground of representation, goes 
to the whole present constitution of Great Britain ; and I suppose 
it is not meant to new-model that too. People may form their 
own speculative ideas of perfection, and indulge their own fancies 
or those of other men. Every man in this country has his par- 
ticular notions of liberty; but perfection never did, and never 
can, exist in any human institution. For what purpose, then, are 
arguments drawn from a distinction in which there is no real dif- 
ference, of a virtual and actual representation? A member of 
parliament, chosen for any borough, represents not only the con- 
stituents and inhabitants of that particular place, but he repre- 
sents the inhabitants of every other borough in Great Britain. 
He represents the city of London, and all the other commons of 
this land, and the inhabitants of all the colonies and dominions of 
Great Britain; and is in duty and conscience bound to take care 
of their interests.” 

Having treated the subject at very great length, in the 


vain hope of convincing all his hearers, and extinguishing 
HH 2 


467 


CHAP. 
XXXVI. 


A.D. 1765 
—1768. 





Dec. 1766. 


Oct. 1768. 


REIGN OF GEORGE III. 


that sympathy in England for the Americans which was the 
true cause of their resistance, he concluded with this im- 
pressive warning : — 

“ You may abdicate your right over the colonies. Take care, 
my Lords, how you do so, for such an act will be irrevocable. 
Proceed then, my Lords, with spirit and firmness; and, when you 
shall have established your authority, it will then be a time to 
show your lenity. The Americans, as I said before, are a very 
good people, and I wish them exceeding well ; but they are heated 
and inflamed. The noble and learned Lord who preceded me 
concluded with a prayer ; I cannot conclude better than by saying 
to it Amen! and in the words of Maurice, Prince of Orange, con- 
cerning the Hollanders, ‘God bless. this industrious, frugal, and 
well-meaning, but easily-deluded people!’” * 

Lord Mansfield, without entering into systematic oppo- 
sition, had been much alienated from the Court both during 
Lord Rockingham’s first administration, and that strange 
pieballed affair called “Lord Chatham’s second adminis- 
tration,” when the supposed prime minister, holding the privy 
seal, was generally secluded from all society, and knew no- 
thing of public measures except from the newspapers. The 
Chief Justice’s only considerable public exhibition during this 
period was his attack upon the unconstitutional doctrine of 
Lord Chatham and Lord Camden, that, in a case of great 
public emergency, the Crown could by law dispense with an 
act of of parliament. The question arising from the embargo 
upon the exportation of corn, in consequence of apprehended 
famine, he proved triumphantly that, although the measure 
was expedient and proper, it was a violation of law, and re- 
quired to be sanctioned by a bill of indemnity.f Thus the 
supposed favourer of prerogative gained a decided victory 
over those who prided themselves in being considered the 
advocates of popular rights. 

When Lord Chatham at last resigned, Lord Mansfield was 
called in to advise the Duke of Grafton, who was carrying 
on the government on Tory principles, persisting in the tax- 


* Holliday, 242.; 16 Parl. Hist. 172. 

+ 16 Parl. Hist. 250. This doctrine, acted upon in 1827, during the admi- 
nistration of Mr, Canning, and on several subsequent occasions, is now univer- 
sally taken for constitutional law. 


LIFE OF LORD MANSFIELD. 


ation of America by the Britsh Parliament, and in disquali- 
fying Wilkes by a vote of the House of Commons. 

The two Houses being assembled in January 1770, Lord 
Chatham, restored to the vigorous exercise of his faculties, 
opened a furious opposition to the Government; and Lord 
Camden, still holding the great seal, cordially coalesced with 
him. By Lord Mansfield’s advice, a resolution was formed to 
dismiss Lord Camden from his office. But a tremendous 
difficulty arose in finding a successor to him. The King and 
the Duke of Grafton repeatedly urged Lord Mansfield him- 
self to become Chancellor; but, whatever his inclination may 
have been when Lord Bute was minister, in the present 
rickety state of affairs he peremptorily refused the offer, and, 
on the contrary, suggested that the great seal should be given 
to Charles Yorke, who had been afraid that he would snatch 
it from him. By Lord Mansfield’s advice it was that the 
King sent for Charles Yorke, and entered into that unfor- 
tunate negotiation with him which terminated so fatally, 
— occasioning the comparison between this unhappy man, 
destroyed by gaining his wish, and Semele perishing by the 
lightning she had longed for.* The Chief Justice was again 
implored to condescend to become Chancellor, but he insisted 
upon the seal being put into commission; and he named 
three commissioners, over whom he was supposed to exercise 
unbounded influence, and whose decrees he was afterwards 
said to dictate. 

For some months he presided on the woolsack as Speaker 
of the House of Lords, and, in point of fact, exercised almost 
all the functions belonging to the office of Lord Chancellor. 
He maintained his ascendancy even when, on the retreat of 
the Duke of Grafton, Lord North was, with his concurrence, 
placed at the head of the Treasury ; although this minister, as 
he established himself in the favour of the Sovereign and in 
the confidence of Parliament, gradually escaped from the 
thraldom under which he had commenced his ministerial 
career. 

* Horace Walpole’s Letter to Sir H. Mann, Jan. 22. 1770. 


+ Mr. Justice Bathurst (afterwards Lord Bathurst), Mr. Justice Aston, and 
Mr, Baron Smyth. ; 


HH $ 


469 


CHAP: 
XXXVI. 


A.D. 1770. 


Lord 
Mansfield 
again re- 
fuses the 
great seal, 


Jan, 28. 


470 


CHAP. 
XXXVI. 


A.D. 1770. 


Question 


respecting 


he Middle 
: * Wilkes, Esq., whereby the electors of Middlesex were de- 


sex elecs 
tion, 


REIGN OF GEORGE III. 


During the whole of the stormy session of 1770, the 
Chief Justice acted a very conspicuous part; and conflicts, 
similar to those between Pitt and Murray in the House of 
Commons, were nightly witnessed between Chatham and 
Mansfield in the House of Lords. 

The “ Great Patriot,” having with all his ancient energy 
resumed his favourite post as leader of the Opposition, and 
moved as an amendment, in the debate on the address, “ that 
this House would take into consideration the proceedings 
of the House of Commons touching the incapacity of John 


prived of their free choice of a representative,” — 


Lord Mansfield said: “I have never delivered any opinion on 
the legality of the proceedings of the House of Commons on the 
Middlesex election; nor, whatever expectations may be formed, 
will I now declare my sentiments. ‘They are locked up in my 
own breast, and shall die with me. I wished to avoid all allusion 
to the subject, but the amendment moved is of a nature so extra- 
ordinary and alarming as to preclude the possibility of my re- 
maining silent. I acknowledge the distracted state of the nation, 
but am happy to affirm, with a safe conscience, that it can in no 
respect be attributed to me. Declarations of law made by either 
House of Parliament are always attended with bad effects. I 
constantly oppose them when I have an opportunity ; and never, 
in my judicial capacity, think myself bound to honour them with 
the slightest regard. ‘There is a wide distinction between general 
declarations of law and particular decisions which may judicially 
be pronounced by either House on a case regularly submitted to 
their discussion and properly the subject of their jurisdiction. 
A question relating to the seat of one of their members can only 
be determined by that House, nor is there any appeal from their 
decision. Wherever a court of justice is supreme, as the House 
of Commons in matters of election, the determination of that 
court must be received and submitted to as the law of the land. 
If there be no appeal from a judicial sentence, where shall it be 
questioned, and how shall it be reversed? I avoid entering into the 
merits of the late election from a conviction that your Lordships 
have no right to inquire into them. The amendment threatens 
the most pernicious consequences, as it manifestly violates every 
form and law of Parliament, must stir up a quarrel between the two 
Houses, and may entirely destroy the balance of the constitution.” 


LIFE OF LORD MANSFIELD. 


Lord Chatham, although not entitled to address the House 
a second time, immediately rose, and spoke as follows, at first 
in a tone of constrained calm, but soon bursting into fury : — 

“ So alluded to by the noble and learned Chief Justice of the 
King’s Bench, I must beg the indulgence of your Lordships. No 
man is better acquainted with his great abilities and great acquire- 
ments than I am, or has higher respect for them. I have had the 
pleasure of sitting with him in the other House of Parliament, and 
I have often felt his power. But on the present occasion I meet 
him without fear. The constitution has already been openly 
invaded, and I have heard, with horror and astonishment, that 
invasion defended upon principle. What is this mysterious power, 
undefined by law, which we must not approach without leave, nor 
speak of without reverence ; which no man may question, and to 
which all men must submit ? I thought the slavish doctrine of pas- 
sive obedience had long since been exploded ; and, when our kings 
are obliged to confess that their title to the crown and the rule of 
their government have no other foundation than the known laws of 
the land, I never expected to hear a divine right or a divine infalli- 
bility attributed to any other branch of the legislature. Power 
without right is the most odious and detestable object that can be 
offered to the human imagination: it is not only pernicious to 
those who are subject to it, but tends to its own destruction. It 
is, as Littleton has truly described it, res detestabilis et caduca. I 
acknowledge the just power, and reverence the true privileges, of 
the House of Commons. For their own sake I would prevent 
their assuming a jurisdiction which the constitution has denied 
them, lest, by grasping at an authority to which they have no 
right, they should forfeit that which they legally possess. But I 
affirm they have violated the constitution, and betrayed their con- 
stituents. Under pretence of declaring the law, they have made 
a law, and united in the same persons the offices of legislator and 
judge. What, then, are all the generous efforts of our ancestors 
—-are all those glorious contentions by which they meant to 
secure to themselves, and transmit to their posterity, a known law, 
a certain rule of living, reduced to this conclusion, that, instead of 
the arbitrary power of a King, we must submit to the arbitrary 
power of a House of Commons? If this be true, what benefit do 
we derive from the exchange? Tyranny is detestable in every 
shape, but in none is it so formidable as where it is assumed and 
exercised by a number of tyrants.” — After highly applauding the 


ancient nobility as founders of the constitution, and pointing out 
Hu 4 


471 


CH AP. 
XXXVI. 


A.p. 1770. 
Lord 
Chatham’s 
attack on 
Lord 
Mansfield. 


May 1. 


REIGN OF GEORGE III. 


how their work was now threatened by the subtleties of lawyers, 
he thus concluded, casting a scornful glance at Lord Mansfield : 
“ Those tvon barons (for so I may call them when compared with 
the silken barons of modern days*) were the guardians of the 
people; yet their virtues were never engaged in a question of 
such importance as the present. A breach has been made in the 
constitution ; the battlements are dismantled ; the citadel is open 
to the first invader; the walls totter. What remains, then, but 
for us to stand foremost in the breach, to repair or perish in it ?” 

Lord Mansfield did not attempt any reply, and the amend- 
ment was negatived without a division.+ 

Nevertheless, Lord Chatham actually laid on the table of 
the House of Lords a bill to reverse the decision of the 
House of Commons by which Colonel Luttrell, with a small 
minority of votes, was declared the lawful representative for 
the county of Middlesex, on the ground that Mr. Wilkes, 
who had the majority, was ineligible. On this occasion he 
inveighed with increased violence against the arbitrary pro- 
ceedings of the Lower House, exclaiming, — 

“ Fye ont! O fye! ’tis an unweeded garden 


That grows to seed; things rank and gross in nature 
Possess it merely.” 


He then darted at another quarry : — 

“ My Lords, I am apprehensive — I am too appreberei ye oan 
these waters of bitterness have their source too near the palace. 
[Lord Pomfret called him to order, but he continued.] My Lords, 
I do not retract my words. ‘Though I shall never abet the cla- 
mours of faction, I will ever stand forth an advocate for the just 
rights of the people; and, while I am able to crawl upon the 
surface of this globe, I will pledge myself to their cause, conscious 
that it must be the cause of liberty and virtue. I esteem the King 
in his personal capacity ; I revere him in his political one; and I 
hope he will show his regard for the principles which placed his 
family on the throne, by dissolving a House of Commons which 
has forgotten from whom it originated and for what purpose it 
was created, —sporting with the most sacred rights of the people, 
and abetting the tyranny of those whom it ought to control and to 
punish.” 


* T know not whether he alluded to the black silk robe which Lord Mans- 
field and other law lords always wore when attending the House. 
t 16 Parl. Hist. 644—666. 


LIFE OF LORD MANSFIELD. 


Lord Mansfield’s faculties, instead of being excited, seem 
to have been paralysed by this ebullition. He was expected 
to follow immediately, but he remained silent, and, after a 
long pause, the friends of the bill called out “ Question!” 
“ Divide!” He was at last forced up; but labouring, I pre- 
sume, under a consciousness of the badness of his cause, he 
spoke in a style characterised as “ frigid and pettifogging.” 
He denied that Colonel Luttrell was in a minority, as that 
candidate had 296 votes to nothing ; for the 1143 votes nomi- 
nally given for Mr. Wilkes, being given for a candidate who 
was known to be disqualified, were “ thrown away,” and were 
no votes at all. Notwithstanding the instance of Sir Robert 
Walpole, who had been re-elected immediately after having 
been expelled, he maintained that, according to understood 
law and usage, a person expelled could not be re-elected in 
the same parliament, whatever right he might have after a 
dissolution. Having pretty well disclosed the secret which 
he said was to die with him, he unaccountably added, “* What 
part I took previously in this matter shall ever remain with 
myself: I have, I must confess, deposited it in the breast of 
one of the royal family, but, resting secure in that confidence, 
it shall never be disclosed to another.” He recapitulated his 
arguments to show that the judgment of the House of Com- 
mons on this subject, right or wrong, could not be questioned 
elsewhere ; and he tried to rally his spirits as he concluded 
with these observations: — “ But suppose your Lordships 
coincide with the motion,—suppose we all agreed nem. con. 
to repeal the decision of the House of Commons, and to seat 
Mr. Wilkes as representative for Middlesex, instead of Colo- 
nel Luttrell, — good God! what may be the consequence? 
The people are violent enough already, and to have the su- 
perior branch of the legislature join them would be giving 
such a public encouragement to their proceedings that I 
almost tremble while I even suppose such a scene of anarchy 
and confusion.” 

These observations were very roughly handled by Lord 
Camden and other peers who followed; and the Parliamentary 
History adds, “‘ Lord Shelburne, in a severe speech upon the 
Ministry, endeavoured to call up Lord Mansfield again, but 


473 


CHAP. 
XXXVI. 


A.Do L77TOE 
Lord 
Mansfield 
quails 
under the 
infliction. 


—— 
as A ees Ky er eM eer 


— 


474 


CHAP. 
XXXVI. 


A.D, 1770, 


Lord 
Chatham’s 
blunder 
about “an 
action for 
damages 
against 
the House 
of Com- 
mons,” 


REIGN OF GEORGE III. 


it was impossible.” The bill was rejected on the second 
reading, by a majority of 89 to 43.* Nevertheless, the 
Opposition exulted on account of the discomfiture of Lord 
Mansfield, which they reckoned the omen of future triumphs 
to their party, and they made a run at him, thinking still 
further to lower his authority, by sneering at him on all 
occasions, as well as by openly assailing him. But speedily 
his nerves were restrung, and he was again the bold and for- 
midable champion of the Government. Lord Chatham, in an 
unlucky moment venturing to treat the question of the Mid- 
dlesex election legistically, had asserted in a very authoritative 
tone that “actions would lie against the whole House of 
Commons for having unseated Wilkes, and deprived the 
electors of the county of Middlesex of their franchise.” He 
was asked, “* Who are to be plaintiffs? and are the defendants 
to be sued as a corporation or as individuals? — how is the 
distinction to be made between the members who voted in 
the majority and in the minority ? —by what evidence are 
their votes either way to be proved? — how is the defence to 
be conducted ?— out of what fund are the damages to be 
paid ?— and how are illiterate juries thenceforth to be pre- 
vented from being judges of all the privileges of Parliament?” 
Lord Chatham’s reckless disregard of such considerations 
caused exceeding joy to Mansfield, who exclaimed, “ The 
Lord has delivered him into my hand!” and for a long time 
made this supposed right of action against the House of Com- 
mons the burden of his song. t 

Lord Chatham thought he would have his revenge by try- 
ing to raise a laugh against Lord Mansfield for his supposed 
sudden conversion to the liberal side, and for trying to please 
the mob by supporting the bill to take away the protection 


* 16 Parl. Hist. 955—966. 

t Very vague notions seem to have prevailed in those days respecting legal 
remedies. A citizen of London brought to trial an action before Lord Mans- 
field to recover back the sum he had been obliged to pay for taxes to the King, 
on the ground that, the county of Middlesex not being properly represented, the 
House of Commons had no right to tax the people, and all Jaws made by Par- 
liament were void. Of course he was speedily nonsuited, and reprimanded for 
his presumption.—(1 Evans, 34.) During the passing of the Reform Bill, in 
182, some hot-headed and absurd men talked of a refusal to pay taxes if the 
bill should be rejected ; but this they meant as an act of resistance to authority, 
not as what they could justify in a court of law. 


LIFE OF LORD MANSFIELD. 


which peers’ servants had hitherto enjoyed against being 
sued for their debts while Parliament was sitting. The 
Chief Justice, after ably defending the principle of the bill, 
asked, “ Shall it be said that you, my Lords, the grand 
council of the nation, the highest judicial and legislative 
body of the realm, endeavour to evade by privilege those 
very laws which you impose upon your fellow-subjects! For- 
bid it, justice! The law ought to be equally open to all: any 
exemption to particular men, or particular ranks of men, 
is, In a free and commercial country, a solecism of the grossest 
nature.” There being a suppressed titter at the expression 
of these sentiments by the defender of the disfranchisement 
of Middlesex, he turned round to Lord Chatham, and, eyeing 
him with calm resolution, thus addressed him : — 

“‘ It has been imputed to me by the noble Earl on my left hand 
that I, too, am running the race of popularity. If the noble Earl 
means by popularity the applause bestowed by after-ages on good 
and virtuous actions, I have long been struggling in that race, — 
to what purpose all-trying time can alone determine; but if he 
means that mushroom popularity which is raised without merit, 
and lost without a crime, he is much mistaken. I defy the noble 
Earl to point out a single action in my life where the popularity 
of the times ever had the smallest influence upon my determination, 
I thank God I have a more permanent and steady rule for my 
conduct—the dictates of my own breast. ‘Those who have fore- 
gone that pleasing adviser, and given up their minds to the slavery 
of every popular impulse, I sincerely pity; I pity them still more 
if vanity leads them to mistake the shouts of a mob for the trumpet 
of Fame. Experience might inform them that many who have 
been saluted with the huzzas of a crowd one day, have received 
its execrations the next ; and many who, by the fools of their own 
times, have been held up as spotless patriots, have, nevertheless, 
appeared on the historian’s page, when truth has triumphed over 
delusion, the assassins of liberty. Why, then, can the noble Earl 
think I am ambitious of present popularity— that echo of flattery 
and counterfeit of renown ?” 

The bill passed without further observation*, and Lord 
Mansfield proved that, although he might be attacked un- 
sparingly for the doctrines which he laid down, he had it in 


* 16 Parl. Hist. 974—978. 


475 


CHAP. 
XXXVI. 


A.D. 1770. 
May 9. 


Lord 
Mansfield’s 
speech 
against 
Lord 
Chatham’s 
bill to re- 
verse the 
decision of 
the House 
of Com- 
mons inthe 
Middlesex 
election 
case. 


a 


— 


476 


CHAP. 
XXXVI. 


JuNIUS’s 
Letter to 
the Kine. 


Dee9. = 


1769. 


REIGN OF GEORGE III. 


his power, by a proper display of spirit, to secure for himself 
the respect and courtesy due to his station. 

But he was greatly disappointed if he expected that he was 
henceforth to enjoy tranquillity. He was now entering the 
most tempestuous period of his whole life. 

JuNIus having, with unbounded applause and entire im- 
punity, libelled for a twelvemonth the Duke of Grafton, then 
at the head of the Treasury, and other distinguished public 
characters, at last addressed a letter to the King himself, 
which, with some wholesome truths, contained insinuations 
and charges against his Majesty’s conduct and personal 
honour which must have been very hurtful to his feelings, 
and tended strongly to deprive him of the esteem and affec- 
tion of his subjects. Such an outrage must be condemned 
by all right-thinking persons, as not only contrary to the 
letter of the law, but as unconstitutional, mischievous, and 
dastardly. The fiction that the King can do no wrong, ought 
to be respected as the foundation of responsible government, 
and favourable to liberty as well as order. Public acts should 
all be presumed to proceed from the advisers of the Crown; 
and the private life of the Sovereign should be held still more 
sacred than that of the multitude, which factious opposition 
has agreed to spare. For calumny and insult he has not, 
like a subject, a remedy either by an appeal to the law or by 
taking the law into his own hand. 

The Attorney General very properly (I think) filed cri- 
minal informations against Woodfall, who first published the 
letter, and against Almon and Miller, who immediately re- 
printed it. A licenser is not to be endured, and the utmost 
freedom should be given to fair discussion; but it betrays 
gross ignorance of the principles by which order is to be pre- 
served in society, to contend that no control is to be exercised 
by the magistrate over the publications which issue from the 
press. Not only is protection due to the characters of indi- 
viduals, but no government can stand,—democratical or 
monarchical, — whatever may be its form—against daily 
attacks upon its fundamental institutions, and daily exhort- 
ations to rise and subvert it. The right of insurrection, 
which may’ be resorted to as the last remedy against tyranny 


LIFE OF LORD MANSFIELD. 


and oppression, can never be recognised by any code, or 
pleaded in any court of justice. 


477 


CHAP. 
XXXVI. 


Rex vy. Almon was the first case brought to trial; and here, Jan, 9. 
without any denial that the letter was a libel, the great point 1770: 


Rex v, 


made was, that the evidence was insufficient to render the Almon. 


defendant liable as publisher. A copy was produced which 
had his name in the title-page as publisher, and which had 
been bought at his shop from a person acting there as his 
servant. Serjeant Glyn, his counsel, urged that a man can- 
not be made a criminal by the act of his servant; but Lord 
Mansfield ruled that a sale by the servant was primd facie 
evidence of a publication by the master, on the principle gui 
facit per alium facit per se; and the jury found a general 
verdict of Guitty. In the ensuing term a motion was made 
for a new trial, on the ground that there was no proof of 
criminal intention on the part of the defendant, or that he 
even knew of the letter from Junius to the King haying 
been in his shop, or even having been printed or written. 

Lord Mansfield: “1 continue to think that the buying of a 
pamphlet in the open shop of a professed bookseller and publisher 
of pamphlets, from a person acting in the shop, is prima facie 
evidence of a publication by the master himself; but it is liable to 
be contradicted where the fact will permit, by contrary evidence 
tending to exculpate the master and to show that he was not 
privy nor assenting to it. Thus the evidence stands good till 
answered, and, not being answered at all, conclusively supports the 
conviction.” — The other Judges concurred, and a rule to show 
cause was refused.* 

This decision of the court was clamorously condemned by 
the newspapers, and was even commented upon very harshly 
by Mr. Dunning in the House of Commonsf: but it is clearly 
according to law and reason; for, if proof were required of 
the personal interference or express sanction of the master, 
libels might be published with entire impunity, and the ad- 
mission of evidence to rebut the presumption affords ample 
protection for innocence. Afterwards, in the “ Reign of 
Terror” upon the outbreak of the first French Revolution, 
the doctrine was grossly perverted, and judges refused evi- 


* Burr. 2686.; 20 St. Tr. 803. + 16 Parl. Hist. 1279. 


478 


CHAP. 


XXXVI, 


A.D. 1770, 


Jan. 13. 
Rex v. 
Woodfall. 


REIGN OF GEORGE III. 


dence to prove that libellous articles had been inserted in 
newspapers when the registered proprietor, who was prima 
facie answerable, was not only lying unconsciously sick in 
bed at the time of the publication, but had given express 
orders to the acting editor that the articles should not be 
admitted. The recurrence of such iniquity is for ever pre- 
vented by “ Lord Campbell’s Libel Act,” which saves the 
master from criminal responsibility for an unauthorised pub- 
lication by the servant.* 

When the trial against Woodfall, the printer of the 
Mornine ADVERTISER, came on, there being no doubt re- 
specting the defendant’s liability as publisher, an attempt was 
made to persuade the jury that the letter was not libellous; 
and the grand dispute arose, whether this was a question for 
the jury, or exclusively for the court ? 

Lord Mansfield said, “ All the jury had to consider was, 
whether the defendant had published the letter set out in the 
information, and whether the znnuendoes imputing a particular 
meaning to particular words, as that ‘ the K ’ meant his 
majesty King George III.; but that they were not to con- 
sider whether the publication was, as alleged in the inform- 
ation, ‘ false and malicious,’ these being mere formal words; 
and that whether the letter was libellous or innocent was a 
pure question of law, upon which the opinion of the court 
might be taken by a demurrer, or a motion in arrest’ of 
judgment.” 

The jury retired, and after staying out many hours, having 
been brought in hackney coaches from Guildhall to Lord 
Mansfield’s house in Bloomsbury Square, the foreman gave 
their verdict in these words, * GuiLtTy of the printing and 
publishing ONLY.’ 

In the ensuing term, cross-rules were obtained: by the 
Attorney General and by the defendant to ascertain the 
legal result of this finding; the one contending that it 
amounted to a conviction, and the other to an acquittal. 
After the case had been very elaborately argued, Lord 
Mansfield said, — 





* 6&7 Vic. c. 96. 's. 7. 


LIFE OF LORD MANSFIELD. 


“ Had the verdict been simply ‘guilty of printing and pub- 
lishing,’ we should have thought that it ought to be entered 
generally for the Crown; but we cannot exclude the word ‘ only,’ 
and this appears to negative something charged in the information 
which the jury thought was submitted to them. Where there are 
more charges than one, ‘guilty of some ONLY’ is an acquittal as 
to the rest ; but in this information there is no charge except for 
printing and publishing: clearly there can be no judgment of 
acquittal, because the fact found against the defendant by the jury 
is the very crime they had to try. That the law is as I stated to 
the jury has been so often unanimously agreed by the whole 
Court, upon every report I have made ofa trial for a libel, that it 
would be improper to make it a question now in this place. 
Among those who have concurred, the bar will recollect the dead, 
and the living not now here.* And we all again declare our opi- 
nion that the direction was right and according to law. Can any 
meaning be affixed to the word ‘ only’ which may affect the verdict ? 
If they meant to say, ‘they did not find it a libel,’ or ‘did not find 
the epithets false and malicious,’ it would not affect the verdict, 
because none of these things were to be proved or found either 
way. It is impossible to say with certainty what the jury really 
did mean. Probaby they had different meanings. It is possible 
some of them might mean not to find the whole sense put upon 
part of the words by the zmnwendoes in the information. If there 
be a meaning favourable to the defendant which by possibility 
the words will bear, he ought not to be concluded. Therefore we 
order the verdict to be set aside, and that there shall be a new 
trial.” 

Woodfall was henceforth secure, for it was well known 
that no jury in the city of London would find a verdict 
against the publisher of JuNnrus, whatever they might be told 
from the bench as to their functions or their duties. 

Before this judgment had been given, the information 
against Miller had been tried at Guildhall, when Lord Mans- 
field, in a very solemn and peremptory tone, spoke as 
follows : — 

“ T have the satisfaction to know, that if I should be mistaken 
in the direction I am about to give as to your duty on the present 
occasion, it will not be final and conclusive; but, under the full 
conviction of my own mind that I am warranted by the uniform 


* TI suppose meaning Mr. Justice Yates. 


July 18. 
Rex v. 


Miller, 





480 


CHAP. 
XXXVI. 


A-bd. 1770. 


REIGN OF GEORGE IIl. 


practice of past ages, and by the law of the land, I inform you that 
the question for your determination is, whether the defendant 
printed and published a ‘paper of such tenor and meaning as is 
charged by the information? If the tenor had been wrong, the 
prosecution would at once have fallen to the ground; but that is 
not objected to, nor is any meaning suggested by the defendant 
different to that supplied by the filling up the blanks in the inform- 
ation. If you find the defendant not guilty, you find that he did 
not print or publish as set forth : if you find him gwilty, you find 
that he did print and publish a paper of the tenor and meaning set 
forth in the indictment. Your verdict finally establishes that fact ; 
but you do not by that verdict find whether that production was 
legal or illegal: for should the defendant be found guilty, he may 
arrest the judgment, by insisting there is nothing illegal in this 
paper, and may carry this matter before the highest court of judi- 
cature in the kingdom.” 

With strange incongruity he added, — 

“Tf you choose to determine the point of law, you should be very 
sure, for your conscience’ sake, that your determination is law; but 
if the law was in every case to be determined by juries, we should 
be in a miserable condition, as nothing could be more uncertain, 
from the different opinions of mankind.” 

Half the population of London were assembled in the 
streets surrounding Guildhall, and remained several hours 
impatiently expecting the result. Lord Mansfield had re- 
tired to his house, and many thousands proceeded thither 
in grand procession when it was announced that the jury 
had agreed. At last a shout, proceeding from Bloomsbury 
Square and reverberated from the remotest quarters of the 
metropolis, proclaimed a verdict of Nor Guiury. * 


Lord Mansfield, in the course of these trials, had done 


‘nothing to incur moral blame. I think his doctrine, that the 


jury were only to find the fact of publication and the innu- 
endoes, contrary to law as well as liberty. His grand argu- 
ment for making the question of “libel or not” exclusively 
one of law, that the defendant may demur or move in arrest 
of judgment, and so refer it to the court, admits of the easy 
answer, that, although there may be a writing set out in the 


* 20 St. Tr. 896. 


LIFE OF LORD MANSFIELD. 


information as libellous which it could under no circum- 
stances be criminal to publish, yet that an information may 
set out a paper the publication of which may or may not be 
criminal, according to the intention of the defendant and the 
circumstances under which it is published. Therefore, sup- 
posing judges to be ever so pure, upright, and intelligent, 
justice could not be done by leaving to them the criminality 
or innocence of the paper alleged to be libellous as a mere 
abstract. question of law to be decided by reading the record. 
Nevertheless there were various authorities for the rule which 
Lord Mansfield had laid down; and, in laying it down, he 
not only followed the example of his immediate predecessors, 
but he was supported by the unanimous opinion of his 
brethren who sat by him. ‘There was no pretence for repre- 
senting him as a daring innovator, who, slavishly wishing to 
please the Government, tried to subvert trial by jury and to 
extinguish the liberty of the press. Nevertheless he was very 
generally believed to have acted corruptly *, and, having been 
coarsely compared by vulgar vituperators to Jeffreys and 
Scroggs, he was thus addressed in more pointed, polished, and 
venomous terms by Junius himself: — 

“ Our language has no term of reproach, the mind has no idea 
of detestation, which has not already been happily applied to you, 


* The perverted state of the public mind we may learn from Horace Wal- 
pole’s Memoirs of the Reign of George ILI., which were written at the time, 
not for any factious purpose, but to remain unpublished till a future age, and 
which accordingly did not see the light till the year 1845 :—“ Lord Mansfield 
endeavoured, by the most arbitrary constructions, to mislead the jury, telling 
them that they had nothing to do with the intention, nor with the words in the 
indictment —~malicious, seditious, &c. The despotic and Jesuitic judge went far- 
ther. He said the business of the jury was to consider whether the blanks were 
properly filled up? As to the contents of the paper, whether true or false, 
they were totally immaterial. No wonder juries were favourable to libellers, 
when the option lay between encouraging abuse and torturing law to severe 
tyranny! It did the jury honour that they preferred liberty to the voice of the 
Inquisition. Not content with open violations of justice, he carried the jurors 
home with him, though without effect. What criminal could be more heinously 
guilty than such a judge?” (Vol. iv. p.159, 160.) For the last insinuation,— that 
the Judge, not being able to prevail upon the jury to find a false verdict in open 
court, carried them home with him to corrupt them by a good dinner and 
plenty of wine, —had this foundation, that the jury, having been locked up at 
Guildhall without meat, drink, or fire, till they had agreed on their verdict, were, 
according to the usual practice, which in this case was expressly sanctioned by 
the counsel on both sides, brought before the Judge, to deliver it in his private 
apartments before the officers of the court and all who wished to be present. 


VOL. II. II 


481 


CHA: 
XXXVI. 


AD. Liga 


Nov. 14. 
Junius’s 
first letter 
to Lord 
Mansfield, 


—= 


—- 


482 


CHAP. 


REIGN OF GEORGE III. 


and exhausted. Ample justice has been done by abler pens than 


XXXVI. mine to the separate merits of your life and character. Let it be 


A.D. 1770, 





my humble office to collect the scattered sweets till their united 
virtue tortures the sense. 

“ Permit me to begin with paying a just tribute to Scotch sin- 
cerity wherever I find it. I own I am not apt to confide in the 
professions of gentlemen of that country; and, when they smile, 
I feel an involuntary emotion to guard myself against mischief. 
With this general opinion of an ancient nation, I always thought 
it much to your Lordship’s honour that, in your earlier days, you 
were but little infected with the prudence of your country. You 
had some original attachments which you took every proper op- 
portunity to acknowledge. The liberal spirit of youth prevailed 
over your native discretion. Your zeal in the cause of an unhappy 
prince was expressed with the sincerity of wine, and some of the 
solemnities of religion. This, I conceive, is the most amiable 
point of view in which your character has appeared. Like an 
honest man, you took that part in politics which might have been 
expected from your birth, education, country, and connections. 
There was something generous in your attachment to the banished 
House of Stuart. We lament the mistake of a good man, and do 
not begin to detest him until he affects to renounce his principles. 
Why did you not adhere to that loyalty you once professed? Why 
did you not follow the example of your worthy brother ? With 
him you might have shared in the honour of the Pretender’s con- 
fidence; with him you might have preserved the integrity of your 
character ; and England, I think, might have spared you without 
regret. Your friends will say, perhaps, that although you deserted 
the fortune of your liege lord, you have adhered firmly to the 
principles which drove his father from the throne; that, without 
openly supporting the person, you have done essential service to 
the cause, and consoled yourself for the loss of a favourite family 
by reviving and re-establishing the maxims of their government. 


' This is the way in which a Scotchman’s understanding corrects 


the error of his heart. My Lord, I acknowledge the truth of the 
defence, and can trace it through all your conduct. I see, through 
your whole life, one uniform plan to enlarge the power of the 
Crown at the expense of the liberty of the subject.” 

After specifying at very great length the supposed enor- 
mities of the Chief Justice in the prosecution of his plan, the 
writer comes to the recent trials for publishing his own letter 
to the King : — 


LIFE OF LORD MANSFIELD. 


_“ Here, my Lord, you have fortune on your side. When you 
invade the province of the jury in matter of libel, you in effect 
attack the liberty of the press; and, with a single stroke, wound 
two of your greatest enemies. In other criminal prosecutions the 
malice of the design is confessedly as much the subject of consi- 
deration to a jury as the certainty of the fact. If a different 
doctrine prevails in the case of libels, why should it not extend to 
all criminal cases? why not to capital offences? I see no reason 
(and I dare say you will agree with me that there is no good one) 
why the life of the subject should be better protected against you 
than his liberty or property. Why should you enjoy the full 
power of pillory, fine, and imprisonment, and not be indulged with 
hanging or transportation ?” 

Having amply discussed this legal question and several 
others, he makes the following observations on Lord Mans- 
field’s political position, which we shall see had a speedy 
influence upon ministerial arrangements : — 

“Yet you continue to support an Administration which you 
know is universally odious, and which on some occasions you 
yourself speak of with contempt. You would fain be thought to 
take no share in government, while, in reality, you are the main- 
spring of the machine. Here, too, we trace the little, prudential 
policy of a Scotchman. Instead of acting that open, generous part 
which becomes your rank and station, you meanly skulk into the 
closet, and give your Sovereign such advice as you have not spirit 
to avow or defend. You secretly ingross the power while you 
decline the title of minister; and though you dare not be Chan- 
cellor, you know how to secure the emoluments of the office. 
Are the seals to be for ever in commission that you may enjoy 
five thousand pounds a year?” 

The writer concludes with strongly advising Lord Mans- 
field not to make this letter the subject of criminal informa- 
tions, like his letter to the King, as “the prosecution of an 
innocent printer cannot alter facts nor refute arguments.” 

De Grey, the Attorney General, was eager for proceeding 
ex officio against the DAILY ADVERTISER, and all the news- 
papers which had copied this audacious invective against 
the Chief Justice, urging that the administration of the laws 
must speedily come to an end if the first magistrate in West- 


minster Hall could be thus insulted on his tribunal with 
: fap 


483 


CHA 
XXXVI. 


A.D. 1770, 


_— 


al hh ati citi ee a 


484 


CHAP, 
XXXVI. 


A.D. 1770s 


Attacks 
upon Lord 
Mansfield 
in parlia- 
ment. 
Dee. 6. 


His suc- 
cessful 
defence of 
himself. 


REIGN OF GEORGE III. 


impunity. The Chief Justice himself, however, thought it 
more discreet to avoid a personal conflict, and not to keep 
alive the topics respecting his early history and political 
career which Junius had so cunningly and invidiously in- 
troduced. He declared, therefore, ‘‘ that he would confide in 
the good sense of the public and the internal evidence of his 
conscience.” 

But he felt the scandal of his remaining so long Speaker 
of the House of Lords, with a high salary, in addition to 
that of Chief Justice, and of keeping the seals in commission 
for a longer time than had been known since the reign of 
William III. The difficulty was to find a Chancellor. The 
fittest man would have been Dunning, who had accepted the 
office of Solicitor General under the Duke of Grafton; but 
he was known to be an enemy both to the Chief Justice and 
to his principles. 

These perplexities were increased by his alleged encroach- 
ment on the rights of juries being brought before Parliament. 
Serjeant Glyn made a motion in the House of Commons for 
“a committee to inquire into the proceedings of the Judges in 
Westminster Hall, particularly in cases relating to the liberty 
of the press ;” — when, in the course of along debate, the con- 
duct of the Chief Justice was severely censured not only by 
the mover but by Dunning and Burke, while it was stoutly 
defended by De Grey the Attorney General, Thurlow the 
Solicitor General, and Charles Fox, still a courtier. * 

In the House of Lords there was a close compact between 
Lord Chatham and Lord Camden against Lord Mansfield ; 
and he had no one to give him the slightest assistance in 
debate, although on a division he had numbers on his side. 
In the course of a renewed discussion which now took place 
on the Middlesex election, Lord Chatham “ made a digression 
upon the modern manner of directing a jury from the bench, 
and giving judgment upon prosecutions for libels.” 

Lord Mansfield: “It is extremely painful, my Lords, where a 
man is publicly attacked, not only to have prejudice to contend 


* 16 Parl. Hist. 1211—1302., 


t Ibid. 1302. We only learn the particulars of the charge from the answer, 
which is given at length. 


LIFE OF LORD MANSFIELD. 


with, but ignorance; I say ignorance, because, highly as I respect 
the abilities of my accuser in other matters, this is a point on 
which he is entirely destitute of information; indeed, so destitute, 
that, were I not apprehensive my silence might be liable to mis- 
construction, I should not have distinguished him with the atten- 
tion of a reply. The noble Lord is pleased to say that the con- 
stitution of the country has not only been wounded in the House 
of Commons in the material right of election, but in the Court of 
King’s Bench by the immediate dispensers of the law. His Lord- 
ship tells the House that doctrines no less new than dangerous 
have been inculcated in this court, and that particularly in a 
charge which I delivered to the jury on Mr. Woodfall’s trial my 
directions were contrary to law, repugnant to practice, and in- 
jurious to the dearest liberties of the people. This is an alarming 
picture, my Lords; it is drawn with great parade, and coloured to 
affect the passions amazingly. Unhappily, however, for the 
painter, it wants the essential circumstance of truth in the design, 
and must, like many other political pictures, be thrown, notwith- 
standing the reputation of the artist, among the miserable daubings 
of faction. So far, my Lords, is the accusation without truth, 
that the directions now given to juries are the same that they have 
ever been. ‘There is no novelty introduced, — no chicanery 
attempted; nor has there till very Jately been any complaint of 
the integrity of the King’s Bench. When, indeed, the abettors of 
sedition found that the judges were neither to be flattered from 
their duty by fulsome adulation, nor intimidated by the daring 
voice of licentiousness —— when they found that Justice was not 
afraid of drawing her sword against the greatest favourite of an 
inconsiderate multitude — they had no resource but to impeach 
the probity of her ministers: to acknowledge the equity of any 
sentence against themselves would be to give up their pretensions 
to patriotism. What, therefore, was to be done? To traduce 
the judges, — to represent them as the servile tools of every arbi- 
trary minister, — to hold out every criminal as a martyr to the 
public good, and to excite a general abhorrence of all legal 
subordination.” 

Having vindicated himself at great length by a review of 
the authorities and arguments connected with the case, he 
said he had directed juries in the same manner for fourteen 
years, without any objection being made to the rule he laid 
down, although he had often requested that if any doubt 

je Gaces 


485 


CHAP. 
XXXVI. 





A.D. 1770. 


486 


CHAP. 
XXXVI. 


A.D. 1770, 


REIGN OF GEORGE III. 


existed the opinion of a higher court might be taken. He 
thus concluded : — 

“ Judges, my Lords, cannot go astray from the express and 
known law of the land. They are bound by oath punctually to 
follow the law. I have ever made it the rule of my conduct to 
do what was just; and, conscious of my own integrity, am able to 
look with contempt upon libels and libellers. Before the noble 
Lord, therefore, arraigns my judicial character, he should make 
himself acquainted with facts. The scurrility of a newspaper may 
be good information for a coffee-house politician ; but a peer of 
parliament should always speak from higher authority; though, if 
my noble accuser is no more acquainted with the principles of law 
in the present point than in what he advanced to support the 
motion where he told us an action would lie against the House of 
Commons for expelling Mr. Wilkes, I am fearful the highest 
authorities will not extend his ideas of jurisprudence nor entitle 
him to a patient hearing upon a legal question in this assembly.” 

Lord Chatham tried to reply, but could make nothing of 
his action for damages against the House of Commons, and 
was obliged to retreat upon the Middlesex election, which he 
said “he should consider the alarm-bell of liberty ; ringing it 
incessantly till he roused the people to a proper sense of 
their injuries.” 

Lord Camden then came to the rescue, and gave a flagrant 
instance of the little reliance to be placed on the law laid 
down in debate by experienced lawyers; for he stoutly 
argued that the action against the House of Commons might 
be maintained : — 

“The noble and learned Lord on the woolsack has been pleased 
to sneer at my illustrious friend on account of his unacquaintance 
with the law, in saying that ‘an action for damages lies against 
the House of Commons for disfranchising the county of Mid- 
dlesex.’ The noble and learned Lord, however, triumphs without 
a victory. If he supposes the laws of this country founded on 
justice, he must acknowledge the propriety of the very observation 
which excites his ridicule. Will he venture to say that, in seating 
Colonel Luttrell, the freeholders have not been grossly and dan- 
gerously injured? Will he venture to say that, being injured, 
they have not a legal claim to redress ? — a title to compensation at 
the hands of a jury for the wrong they have sustained? He 


LIFE OF LORD MANSFIELD. 


knows they have; he cannot deny their claim, unless he places 
the simple resolution of the other House entirely above the esta- 
blished law of the land, and tells us that the lowest estate of par- 
liament is constitutionally warranted to annihilate the constitution. 
With respect to the direction of the noble and learned Lord on 
the woolsack, which my illustrious friend -has referred to, I think 
it would be premature to give any opinion till we have it before 
us. If we can obtain this direction, and obtain it fully, I shall 
very readily deliver my opinion upon the doctrines it inculcates ; 
and if they appear to me contrary to the known and established 
principles of the constitution, I shall not scruple to tell the author 
of his mistake boldly and openly in the face of this assembly.” 

A motion of adjournment made by the Duke of Grafton, 
as the organ of the Government, was carried by a large 
majority.* All present felt that Lord Mansfield had de- 
cidedly the advantage in this encounter, and that he had 
only to enjoy his victory. He wisely remained silent for 
the rest of the evening; but, elated with the compliments 
he received in Westminster Hall, he next day intimated that 
he had something of importance to bring to the notice of the 
House, and moved that their Lordships should be summoned 
to receive the communication. 

On the appointed day there was an unusually large 
attendance of Peers. It was generally believed that the 
Lord Chief Justice was going to move a vote of censure on 
Lord Chatham and Lord Camden for calumniating the 
Judges, and the coming passage of arms between them was 
expected to be more dazzling than any ever before witnessed. 
But, oh! miserable disappointment! After a long pause, 
during which all eyes were fixed upon Lord Mansfield, he at 
last rose and said, — ‘My Lords, I have left a paper with 
the clerk-assistant of this House, containing the judgment of 
the Court of King’s Bench in the case of The King against 
Woodfall, and any of your Lordships who may be so in- 
clined may read it and take copies of it.” To the astonish- 
ment of the audience, he resumed his seat without making 
any motion or uttering a syllable more. 

Lord Camden: “ Does the noble and learned Lord on the 


a 


*" 52: ta 20. 
114 


487 


CHAP. 
XXXVI. 


A.D. 1770. 


Lord 
Mansfield’s 
subsequent 
indisere- 
tion and 
cowardice 
in his con- 
test with 
Lord 
Camden. 
Dec. 11. 


488 


CHAP. 
XXXVI. 


A.D. 1770. 


REIGN OF GEORGE III. 


woolsack mean to have his paper entered on the journals, or 
to found any motion upon it hereafter?” 

Lord Mansfield: «No, no! Only to leave it with the 
clerk.” : . 

The House then proceeded to other business; and some 
Peers who had a curiosity to know the contents of Lord 
Mansfield’s paper found it entitled “ Copy of the unanimous 
Opinion of the Court of King’s Bench in the case of the 
King against Woodfall, and read by the Lord Chief Justice 
on the 20th of November, 1770.” 

Next day, at the sitting of the House, Lord Camden 
said, — 

“My Lords, I consider the paper delivered in by the noble and 
learned Lord on the woolsack as a challenge directed personally 
to me, and I accept it; he has thrown down the gauntlet, and I 
take it up. In direct contradiction to him I maintain that his 
doctrine is not the law of England. Iam ready to enter into the 
debate whenever the noble Lord will fix a day for it. I desire 
and insist that it may be an early one. Meanwhile, my Lords, I 
must observe that, after having considered the paper with the 
utmost care, I have not found it very intelligible. There is one 
sense of the words in which I might agree; but there is another 
sense which may be imputed to them, and which they naturally 
bear. IPf this be what the noble and learned Lord will stand by, I 
am ready to prove it illegal and unconstitutional. I therefore beg 
leave to propose the following questions to the noble and learned 
Lord, to which I require categorical answers, that we may know 
precisely the points we are to discuss : — 

‘1, Does the Opinion mean to declare that upon the general 
issue of not guilty, in the case of a seditious libel, the jury have 
no right by law to examine the innocence or criminality of the 
paper if they think fit, and to form their verdict upon such 
examination ? 

“2. Does the Opinion mean to declare that in the case above 
mentioned, where the jury have delivered in their verdict guilty, 
this verdict has found the fact only, and not the law?, 

“ 3, Is it to be understood by this opinion that if the jury come 
to the bar and say that they find the printing and publishing, but 
that the paper is no libel, the jury are to be taken to have found 
the defendant guilty generally, and the verdict must be so 
entered up? 


LIFE OF LORD MANSFIELD. 


“ 4, Whether the Opinion means to say that if the judge, after 
giving his opinion of the innocence or criminality of the paper, 
should leave the consideration of that matter, together with the 
printing and publishing, to the jury, such a direction would be 
contrary to law?” 

Lord Mansfield (looking very unhappy): ‘I have the highest 
esteem for the noble and learned Lord who thus attacks me, and I 
have ever courted his esteem in return. From his candour I had 
not expected this treatment.* I have studied the point more than 
any other in my life, and have consulted all the Judges on it 
except the noble and learned Lord, who appears to view it 
differently from all others. But this mode of questioning me takes 
me by surprise. It is unfair. I will not answer interrogatories.” 

Lord Chatham: “‘ Interrogatories !’ Was ever anything heard 
so extraordinary? Can the noble and learned Lord on the wool- 
sack be taken by surprise when, as he tells us, he has been con- 
sidering the point all his life, and has taken the opinions of all the 
Judges upon it ?” 

Lord Camden: “Jam willing that the noble and learned Lord 
on the woolsack should have whatever time he deems requisite 
to prepare himself, but let him name a day when his answers may 
be given in, and I shall then be ready to meet him.” 

Lord Mansfield: “I am not bound to answer, and I will pot 
answer, the questions which the noble and learned Lord has so 
astutely framed and so irregularly administered; but I pledge 
myself that the matter shall be discussed.” 

Duke of Richmond: “I congratulate your Lordships upon the 
noble and learned Chief Justice of the King’s Bench haying at 
last pledged himself to the point.” 

Lord Mansfield (much embarrassed) : “ My Lords, I did not 
pledge myself to any particular point ; I only said I should here- 
after give my opinion. And as to fixing a day, I said ‘No! I 
will not fix a day.’” ¢ 

He seemed so much distressed that the matter was here 
allowed to drop, and it never was resumed. t 

Next morning Lord Chatham sent a note to Lord Camden, 
complimenting him on his transcendent doing, inquiring after 


* Horace Walpole says, “ Lord Mansfield, with most abject soothings, paid 
the highest compliments to Lord Camden.”—Mem. Geo. II1., vol. iv. p. 220. 

t 16 Parl. Hist. 1321.; Walp. Mem. Geo, III., vol. iv. p, 220—225. 

+ Horace Walpole, who witnessed the scene, says: “The dismay and con- 
fusion of Lord Mansfield was obvious to the whole audience ; nor did one peer 
interpose a syllable in his behalf.” 


489 


CHAP. 
XXXVI. 


ADL Tees 


190 


CHAP. 
XXXVI. 


4.D. 1770 


—1772. 


Lord 
Mansfield 
gives the 
great seal 
to Lord 
Bathurst. 


New at- 
tacks on 
Lord 
Mansfield 
by Junius. 


REIGN OF GEORGE III. 


his health, and adding, “I think I ought rather to inquire 
how Lord Mansfield does.” * 

There is no denying that “the noble and learned Lord on 
the woolsack” did on this occasion show a great want of 
moral courage, and an utter forgetfulness of the excellent 
precept of Polonius, — “ Beware of entrance to a quarrel: 
but, being in, bear it that the opposer may beware of 
thee.” 

All felt that a new disposition of the great seal could be 
delayed no longer, and, @ pis aller, it was given to Mr. Jus- 
tice Bathurst with the title of CHANCELLOR. Although 
the remark made might have been anticipated, — “that the 
three Commissioners were allowed to be incompetent, and 
the whole business of the office was thrown on the most in- 
competent of the three,” —I am afraid that Lord Mansfield 
was not sorry to see the woolsack so occupied, hoping that 
his own ascendancy, as the only great Tory law lord, might 
remain undiminished. 

However, his position there seems to have become very 
uncomfortable, and I can find no trace of any speech de- 
livered by him in parliament for above four years. He was 
unable single-handed to cope with the formidable league of 
Lord Chatham and Lord Camden, assisted by the Duke of 
Richmond and other allies; and he must have regretted the 
shortsighted policy of choosing such a weak man for Chan- 
cellor as Lord Bathurst, who was incapable of giving him 
any aid or countenance. 

J UNIUS, from the acquittal of the printers till the beginning 
of the year 1772, when he made a treaty with the Govern- 
ment and for ever disappeared, exercised a tyranny of which 
we can form little conception, living in an age when the 
press is more decorous, and we are able by law to restrain 
its excesses. 

I may refresh the recollection of the reader by copying a 
few of the passages in which the victorious libeller seeks to 
revenge himself on Lord Mansfield for the vain attempt to 
bring him to justice. Thus, in the letter to the Duke of 
Grafton, describing the destitute condition of his Grace’s 


* Original letter furnished to me by the present Marquess Camden. 


LIFE OF LORD MANSFIELD. 


party, —having said that “ Charles Fox was yet in blossom,” 
and that “ Wedderburn had something about him which 
treachery could not trust,”—he observes, “ Lord Mansfield 
shrinks from his principles ; his ideas of government perhaps 
go farther than your own; but his heart disgraces the theory 
of his understanding.”* Commenting on Lord Mansfield’s 
compliment to Lord Chatham for supporting the right of 
impressment, which he imputes to a design of injuring the 
great patriot, he says, “ He knew the doctrine was unpopular, 
and was eager to fix it upon the man who is the first object 
of his fear and detestation. The cunning Scotchman never 
speaks truth without a fraudulent design. In council he 
generally affects to take a moderate part. Besides his natural 
timidity, it makes part of his political plan never to be known 
to recommend violent measures. When the guards are 
called forth to murder their fellow-subjects, it is not by the 
ostensible advice of Lord Mansfield. Who attacks the liberty 
of the press? Lord Mansfield! Who invades the consti- 
tutional powers of juries? Lord Mansfield! Who was that 
judge who, to save the King’s brother, affirmed that a man 
of the first rank and quality, who obtains a verdict in a suit 
for criminal conversation, is entitled to no greater damages 
than the meanest mechanic? Lord Mansfield! Who is it 
makes Commissioners of the Great Seal? Lord Mansfield! 
Who is it frames a decree for these Commissioners deciding 
against Lord Chatham?f Lord Mansfield! Compared to 
these enormities, his original attachment to the Pretender 
(to whom his dearest brother was confidential secretary) is a 
virtue of the first magnitude. But the hour of impeachment 
will come, and neither he nor Grafton shall escape me.” t 
Then arose the grand controversy about Lord Mansfield’s 
power to bail Eyre, charged with theft, in which Junius was 
egregiously in the wrong— clearly showing that he was not 
a lawyer, his mistakes not being designedly made for disguise, 
but palpably proceeding from an ignorant man affecting 

* 99d June, 1771. 

+ Alluding to an absurd calumny that a wrong decision of the Lords Com- 
missioners about the Pynzant estate, afterwards reversed in the House of Lords, 


was maliciously framed by Lord Mansfield. 
¢ 5th October, 1771. 


491 


CHAP. 
XXXVI. 


A.D. 1770 
—1772, 


492 


CHAP. 
XXXVI, 


A.D. 1770 


—1772, 


J uNIUS 
at last 
silenced. 


REIGN OF GEORGE III. 


knowledge. Thus he urges Lord Camden, whom he accuses 
of remissness, to prosecute and to punish the delinquent Judge : 
«When the contest turns upon the interpretations of the 
laws, you cannot, without a formal surrender of all your 
reputation, yield the post of honour even to Lord Chatham. 
Considering the situation and abilities of Lord Mansfield, I 
do not scruple to affirm, with the most solemn appeal to God 
for my sincerity, that, in my judgment, he is the worst and 
most dangerous man in the kingdom. Thus far I have done 
my duty in endeavouring to bring him to punishment. But 
mine is an inferior ministerial office in the temple of justice.. 
I have bound the victim and dragged him to the altar.” * 

There were many consultations between Lord Mansfield 
and his friends how these atrocious libels should be dealt with. 
Sir Fletcher Norton strongly recommended a prosecution, 
and even a summary application to commit the printer, and 
the author if he could be got at, for a contempt of court; but 
this advice was rejected, being supposed to be prompted by a 
desire to bring the party libelled into greater disgrace, so that 
he might be forced to resign, and that the adviser, who had 
for many years been impatient to be put on the bench (al- 
though he never accomplished his object), might succeed to 
the vacant Chief Justiceship. There appeared in the DarLy 
ADVERTISER a very able paper, signed ZENO, in defence 
of Lord Mansfield against all the charges Junius had brought 
against him, which was supposed to have been written by 
Lord Mansfield himself; but it only drew forth a more scur- 
rilous diatribe in the shape of a letter to ZuNo from PHILO- 
Junius, —and all hope of refuting or punishing him was 
abandoned as hopeless. At last “the great boar of the forest,” 
who had gored the King and almost all his Court, and 
seemed to be more formidable than any “blatant beast,” was 
conquered, — not by the spear of a knight-errant, but by a 
little provender held out to him, and he was sent to whet his 
tusks in a distant land. 

This certainly was a very great deliverance for Lord 


* January, 1772. 


LIFE OF LORD MANSFIELD. 


Mansfield, who had long been afraid at breakfast to look into 
the DaiLty ADVERTISER, lest he should find in it some new 
accusation, which he could neither passively submit to nor 
resent without discredit; and although he might call the 
mixture of bad law and tumid language poured out upon him 
ribaldry, it had an evident effect in encouraging his opponents 
in parliament, and in causing shakes of the head, shrugs of the 
shoulders, smiles and whispers in private society, which could 
not escape his notice. 


494 


CHAP. 
XXXVIL. 


A.D. 1772 
—1774, 


Lord 
Mansfield 
visits Paris, 


REIGN OF GEORGE III. 


CHAPTER XXXVII. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE 
DEATH OF LORD CHATHAM. 


THE excessive violence of the attacks upon Lord Mansfield 
by Junius had made their effect more transitory, and they 
were gradually forgotten amidst a succession of stirring events 
at home and abroad. 

In the autumn of 1774 he paid a visit to Paris, where his 
nephew, Lord Stormont, had by his interest been appointed 
ambassador, and had shown great energy in counteracting 
the intrigues of the Duke d’Aguillon for French aggrandise- 
ment. -Louis XVI. had just commenced his inauspicious 
reign, and many other distinguished Englishmen had come 
over to witness the festivities in honour of his accession. 
Lord Mansfield was presented to the King and to the young 
Queen, still ‘glittering like the morning star, full of life and 
splendour and joy.” He was treated by both of them with. 
marked civility ; for his reputation as a great magistrate had 
spread over Europe, and his noble appearance and manners 
added to the interest which this had excited.* Amidst the 
splendours of his reception at Versailles, little did he think 
he should live to hear the tidings of Louis and Marie An- 
toinette losing their heads on the scaffold. 

Now was the city of London convulsed by the dispute 
respecting the publication of parliamentary debates, —in the 
course of which the messenger of the House was committed 
to Newgate, and the Lord Mayor to the Tower. Events of 
stupendous magnitude were taking place in the East Indies, 
where a mercantile company, at first content with a store- 
house in which they might expose their wares to sale, had 


* He was so much pleased with the recollection of this scene, that on his 
return he had his portrait painted in the costume which he then wore. 


LIFE OF LORD MANSFIELD. 


become masters of a mighty empire. But it was America 
that chiefly absorbed the public attention. The scheme of 
taxing the colonies had been insanely resumed; Franklin 
had been insulted by Wedderburn; there had been riots at 
Boston; coercion had been tried in vain; a general spirit of 
resistance manifested itself from the St. Lawrence to the 
Mississippi, — and civil war was impending. The paltry 
squabbles for place which had prevailed since the resignation 
of Lord Bute, till the appointment of Lord North as minister, 
were forgotten; and the leaders of all parties, animated by 
nobler thoughts, deliberated upon the measures by which a 
sinking state might be saved from perdition. Lord Mans- 
field resumed his position as a political leader, and was again 
the chief organ of the Government in the House of Lords. 
Lord Bathurst, the Chancellor, seldom spoke, and never with 
effect. The other holders of office in the Upper House were 
Lord Sandwich, Lord Hillsborough, Lord Gower, and Lord 
Dartmouth, who were respectable in debate, but very in- 
ferior to the occupiers of the opposition bench, Lord Chatham, 
Lord Rockingham, Lord Camden, and Lord Shelburne. On 
the one side the only hope held out was from determination, 
vigour, and severity; while the other clung to gentleness, 
confidence, and conciliation, — without as yet for a moment 
admitting the possibility that the mother-country could be 
reduced to the necessity of renouncing her sovereignty over 
her transatlantic colonies. 

The first occasion when Lord Mansfield appeared as leader 
in this memorable struggle was upon the motion to agree to 
a joint address of both Houses to the King, “ lamenting the 
disturbances which had broken out in the province of 
Massachusets, beseeching his Majesty to take the most 
effectual measures for enforcing due obedience to the laws 
and the authority of the supreme legislature, and assuring 
him of their resolution to stand by him at the hazard of their 
lives and fortunes.” * The House of Lords having got into 
sad confusion, and the Government being in danger of dis- 
comfiture from the imbecility of the Lord Chancellor, the 
Chief Justice rose from a back bench and made a very long 


* 18 Parl. Hist. 223. 


496 


CHAP: 
XXXVIL 


A.D. 1774, 
1775. 
Progress 
of the dis- 
putes with 
America. 


Feb. 7. 
1775. 


496 


CHAP. 
XXXVIT. 





AD 2775s 
Lord 
Mansfield’s 
speech for 
a vigorous 
prosecution 
of the 

war. 


Specimen 
of the 


REIGN OF GEORGE ITI. 


and able speech, a few passages of which still possess in- 
terest: — 

“ My Lords, — We are reduced to the alternative of adopting 
coercive measures, or at once submitting to a dismemberment of 
the empire. Consider the question in ever so many lights, every 
middle way will speedily lead you to either of these extremities. 
The supremacy of the British legislature must be complete, entire, 
and unconditional; or, on the other hand, the colonies must be 
free and independent. The claim of non-taration is a renunciation 
of your authority. Ifthe doctrine be just, it extends to the right 
of separating from you and establishing a new republic. It is to 
the last degree monstrous and absurd to allow that the colonists 
are entitled to legislate for themselves on one subject and not on 
all. If they have any such privilege, the defence of it would justify 
resistance ; and I have not yet heard any noble lord say that their 
resistance would not be rebellion.”* . . . “I admit the impolicy of 
the taxes imposed in 1767, which have been the cause of the 
troubles and confusion which we now deplore. They irritated the 
colonists, cramped our own commerce, and encouraged smuggling, 
for the benefit of our commercial rivals.f But the course was to 
petition for their repeal, and not to treat them as illegal. Con- 
cession now is an abdication of sovereignty. All classes will feel 
severely the effects of war, and no one can answer for its events. 
The British forces may be defeated ; the Americans may ultimately 
triumph. But are you prepared to surrender without striking a 
blow ? The question being whether the right of the mother- 
country shall be resolutely asserted or basely relinquished, I trust 
there can be no doubt that your Lordships are prepared firmly to 
discharge your duty, convinced that the proper season for clemency 
is when your efforts have been crowned with victory.” 

Lord Camden unconstitutionally and pusillanimously dis- 
claimed having had any concern in the measure of taxing 
America adopted by the administration to which he belonged, 
saying that “he was never consulted about it, and that he 
was at the time closely and laboriously employed in dis- 
charging the weighty functions of his office.” 

Duke of Grafton: “My Lords, it is mean, and much beneath 


* However, in answer to Dr. Johnson’s “ Taxation no Tyranny,” there came 
out soon after a pamphlet entitled “ Resistance no Rebellion.” 
This was a skilful shot, for Lord Camden was then Chancellor, and Lord 
Chatham held the Privy Seal, and was nominally prime minister, although 
secluded from public business. . 


LIFE OF LORD MANSFIELD. 


the dignity of one who acted in the exalted station of the noble 
and learned Lord to try to screen himself from the disagreeable 
consequences of the measure now deplored, and to shift the blame 
from his own shoulders on those of others who, he knows, were no 
more the authors of it than himself. ‘The measure was consented 
toin the Cabinet ; the noble and learned Lord sat on that woolsack 
while it passed through this House in all its stages. He was the 
very person who officially notified the royal assent to it, and is he 
now to tell the House that it passed without his approbation or 
participation ? With respect to the other noble and learned Lord, 
I must regret that the administration with which I was connected 
was the only one which, for a long course of years, had not the 
benefit of his assistance. Other administrations, no doubt, profited 
much by his experience and ability ; and, if he had continued to 
attend the Cabinet, I am sure his advice would always have been 
respectfully heard; although, from doubts as to its being consti- 
tutional and expedient, it might not always have been followed.” 

Lord Mansfield: “TJ feel this to be a direct attack upon me for 
improperly mixing in politics, and I must exculpate myself from 
the charge. I was a privy councillor during a part of the last 
reign, and I have been during the whole of the present. But 
there is a nominal council, and there is an efficient council called 
the Casiner. For several years I acted as a member of the latter ; 
and, consequently, deliberated with the King’s minister. How- 
ever, a short time previous to the administration in which the 
noble Marquis opposite [Rockingham] presided, and some con- 
siderable time before the noble Lord succeeded him in that depart- 
ment, I prayed his Majesty to excuse my further attendance; and, 
from that day to the present, I have declined to act as a member 
of the Cabinet. I have lived with every administration on equally 
good terms; I have never refused my advice when applied to: 
the noble Marquis must recollect several occasions when I gave 
him the best assistance my poor abilities were capable of. I was 
equally ready to assist the noble Duke; and, if he had asked my 
opinion upon the taxes which, by his instrumentality, were im- 
posed upon America, I should certainly have pronounced them 
impolitic. I opposed the repeal of the Stamp Act from a sense of 
public duty ; but I took no other part in opposing the Government, 
and I even returned a hostile proxy that I might not appear to be 
encouraging others to obstruct its measures. I have never inter- 
fered unless for the good of my country, and no profit or emolu- 
ment has ever accrued to me from being the member of any 
Cabinet.” 

VOL. II. K K 


497 


CHAP. 
XXX VII. 





manners of 
the House 
of Lords in 
the reign 
of George 
EET: 


AD. 1775. 


498 


CHAP. 
XXXVII. 


A.D. 1775. 


REIGN OF GEORGE III. 


Lord Shelburne: “The noble and learned Lord who has just 
sat down endeavours to strengthen his bare assertion that he has 
never improperly interfered, by showing what little or no tempta- 
tion he could have to interfere; but the noble and learned Lord 
knows—every noble Lord in this House knows — a court has many 
allurements besides profit and emolument. He denies any obliga- 
tions or personal favours whatever: but he will permit me to 
observe that smiles may do a great deal; that, if he had nothing 
to ask for himself, he had friends, relations, and dependants, who 
have been amply provided for —I will not say beyond their deserts, 
but this I may say, much beyond their most sanguine expectations. 
Independent, however, of these considerations, I think the pride 
of directing the councils of a great nation to certain favourite 
purposes, and according to certain preconceived principles, may 
tempt to great hazards, and to interferences which, upon an im- 
peachment, it would be hard to justify. Measures of high im- 
portance being disclaimed by the ostensible ministers who proposed 
them, we cannot tell by whom we are ruled, and we cannot be 
said to live under responsible government. Several bills of the 
last session for coercing our American brethren having been dis- 
avowed by the officers of the Crown who ought to have prepared 
them, it is natural for the public to look to a great law Lord, 
notoriously high in the confidence of the present Cabinet (if not a 
member of it), with whose doctrines the harsh enactments of these 
bills so exactly agree.” 

Lord Mansfield (rising in a great passion): “I thought, my 
Lords, it had been the leading characteristic of the members of 
this assembly, contrasted with those of another who too often 
descend to altercations and personal reflections, always to conduct 
themselves like gentlemen ; but I see that rule departed from this 
evening for the first time. I charge the noble Lord who last 
addressed the House with uttering the most gross falsehoods. I 
totally deny that I had any hand in preparing all the bills of the 
last session *, and I am certain that the law officers of the Crown 
never asserted that they had no hand in them. But whether they 
had or had not is of no consequence to me, for I am sure the 
charge applied to me is as unjust as it is maliciously and indecently 
urged.” : 


* Sic in the Parliamentary History (vol. xviii. p. 282.), but he ean hardly 
have used such language. This would be what he himself, in the Court of 
King’s Bench, would have called “a negative pregnant,” ¢. e. a negative pregnant 
with an affirmative, — admitting that he prepared the bills de quibus agitur. 


LIFE OF LORD MANSFIELD. 


According to the Par~iAMenTARY History, “ Lord 
Shelburne returned the charge of falsehood to Lord Mans- 
field in direct terms.”* This scene makes the conflicts ap- 
proaching to personality which in our days sometimes take 
place, between law lords and other members of the House, 
appear almost courteous and orderly. I do not find that 
there was any apology, or that any of the parties were 
ordered into the custody of the Black Rod to prevent a 
_ breach of the peace. The House divided at two in the 
morning, — when the address was carried by a majority of 
104 to 29, —and the following day passed over without any 
news of the ex-Chancellor or the Lord Chief Justice of the 
King’s Bench having fought a duel in Hyde Park.t+ 

The combat was speedily renewed in the House of Lords. 
America was the subject of almost daily discussion; and, 
till the vigorous Thurlow was substituted as Chancellor for 
the feeble Bathurst, the efficient defence of the measures of 
the Government rested mainly on Lord Mansfield. He was 
not formally a member of the Cabinet, but Lord North was 
in frequent communication with him; he had audiences of 
the King, and he was substantially a minister. 

He strongly urged (and so far he was right) that if there 
was to be a civil war it ought to be carrried on by England 
with more vigour. When the bill to prohibit all intercourse 
with certain of the American states was debated, he thus an- 
swered the argument that the measure would produce great 
distress : — 

** Yet, my Lords, admitting all this to be true, what are we to 
do? Are we to rest inactive, with our arms folded, till they shall 
think proper to begin the attack, and gain strength to act against 
us with effect? Weare in such a situation, that we must either 
fight or be pursued. What a Swedish general in the reign of 
Gustavus Adolphus said to his men, just on the eve of a battle, is 
extremely applicable to us at present. Pointing to the enemy, 
who were marching down to engage him, said he ‘ My lads, you 
see those fellows yonder ; if you do not kill them, they will kill 
you.’ My Lords, if we do not get the better of America, America 
will get the better of us. We do not fear that they will attack us 


* Vol. xviii. p. 283. { 18 Parl. Hist, 221—298. 


KK 2 


499 


CHAP: 
XXXVIT. 


AD PLZ Ss 


Dee. 20. 


506 


CHAR. 
XXXVIT. 


AS Demlidos 
1776. 
Supposed 
conse- 
quences of 
the inde- 
pendence 
of Ame- 
rica, 


Trial of the 
Duchess of 
Kingston 

for bigamy. 


REIGN OF GEORGE III. 


at home; but consider what will be the fate of our sugar islands? 
what will be the fate of our trade ?” } 

He goes on at great length to argue that if the insurgents 
obtained independence they would speedily wrest from us all 
our possessions in the West Indies, as well as on the con- 
tinent of America, and that we should be utterly ruined by 
their great commercial prosperity: the doctrine still being 
entertained, —even by intelligent men, who never thought of 
reciprocity, or believed that goods exported or imported are 
paid for otherwise than by the precious metals, — that there 
is a limited and invariable aggregate of commerce in the 
world; and that in proportion as any nation has a large share 
of it, less is left for others.* 

The town was for a time relieved from such discussions 
by the trial of the Duchess of Kingston for bigamy, which 
was regarded as an amusing farce. Lord Mansfield, seeing 
the nature of this exhibition, and aware how it must terminate, 
ineffectually attempted to mitigate the disgrace it must bring 
upon the administration of justice, by moving that—instead of 
Westminster Hall being fitted up for the occasion as if a 
sovereign were to be called to account for subverting the 
liberties of his people, or the governor of a distant empire 
become dependent on the crown of England were impeached 
for oppression and misrule,— the amorous intrigues of this lady 
of fashion should be investigated in the small chamber in 
which the Peers then usually met. Several peers having 
urged that, from the dignity of the party accused, the more 
solemn mode of proceeding should be preferred, he said, — 

“T do not conceive that the charge against the lady has any- 
thing sufficient to distinguish it from many others tried at your 
Lordships’ bar. In 1725 I was present myself when Lord Mac- 
clesfield was tried for a grievous offence at this bar ; an offence, 
considering the office he then held, that of Chancellor of Great 
Britain, accompanied by several aggravating circumstances, for 
which he might have incurred a fine that would have affected 
perhaps the whole of his fortune, and, consequently, have ruined 
his family. The proceedings were by impeachment, — the most 
solemn mode of preferring an accusation known under our laws. 
The prosecution was not carried on by counsel, as this will be, 


* 18) Paris: Hist. 1102; 


LIFE OF LORD MANSFIELD. 


but by managers of the House of Commons, many in number. 
All accusations by bill of attainder are carried on at this bar, 
and Lord Strafford lost his head on the event of a trial so con- 
ducted, the place of trial not being considered one of the hardships 
he had to encounter.* If, then, trials affecting the life, fortune, 
and honours of a peer of the realm have proceeded in the 
chamber of parliament, will your Lordships think that greater 
solemnity is due to a trial where conviction can lead to no punish- 
ment ?—for I must remind your Lordships that this is a clergiable 
offence, for which a peeress can only be admonished ‘to sin no 
more, lest a worse thing befall her.’ If she is brought to trial in 
Westminster Hall, the eyes of Great Britain and of all Europe 
will impatiently wait for the issue ; and what will be thought 
when a verdict of Guitry produces nothing but an admonition 
and a curtesy.” 

However, the Peers would have the spectacle, and it ter- 
minated exactly as was here foretold. 

Lord Mansfield, for his judicial services, deserved the 
highest distinctions that could be bestowed on him; and by 
the part he took against the Americans he was specially 
endeared to George III., who entered into the contest and 
persevered in it with much more eagerness than any of his 
ministers. Asa mark of royal favour, the Chief Justice had 
some time before this been created a Knight of the Thistle ; 
and now he was raised to a higher dignity in the peerage, 
with a limitation to preserve the title although he had no 
children, and to make it take precedence of the hereditary 
honours of his house. He was made Earl of Mansfield, of Mans- 
field in the county of Nottingham, with remainder to Louisa 
Viscountess Stormont and her heirs, by Viscount Stormont, 
the nephew of the new Earl. The lady was thus introduced 
because it had been erroneously decided that a British peerage 
could not be conferred upon a Scotch peer although he might 
inherit it from his mother. When this absurdity was, some 
years afterwards, corrected by a contrary decision, a new 
patent was granted to Lord Mansfield, in which he was 
designated Earl of Mansfield, of Caen Wood, in the county 


* Lord Strafford’s trial on the impeachment was in Westminster Hall, 
although it was on the bill of attainder that he suffered.—3 St. Tr. 1413. 
¢ 18 Parl, Hist. 1112.; 20 St. Tr. 355—651. 


poh s ie, 


501 


CHAP. 
XXXVIT. 


A.D. 1776. 


October. 
Lord 
Mansfield 
created an 


Earl. 


A.D. 1792, 


502 


CHAP. 


XXXVIT. 


A.D. 


1776. 


REIGN OF GEORGE III. 


of Middlesex, with remainder to Viscount Stormont and his 
heirs. Thus two Earldoms of Mansfield were constituted — 
the latter of which, on the death of the first grantee, de- 
scended upon Viscount Stormont, —while the former was 
taken by the Viscountess, and enjoyed by her in her own 
right many years after her husband’s death. 

On his first promotion in the peerage, the Earl of Mans- 
field received this congratulatory epistle from his old school- 
fellow, Bishop Newton: — 

“ Kew Green, Oct. 20th, 1776. 

“ My Lord,—You have long merited the highest honours which 
this country can bestow; but it was not fitting that they should 
die with you: something should remain as a monument to 
posterity. I beg leave, therefore, to congratulate your Lordship, 
or rather my Lord Stormont, upon your additional titles. Nothing 
can be properly an addition to yourself. You may rank higher 
in the world, but you cannot rise higher in the opinion and esteem 
of all who know you, and particularly of, 

“¢ My dear Lord, 
“Your Lordship’s ever affectionate and obedient servant, 
“ J. Bris.” 

The following answer was returned, disclosing the private 
feelings of the writer on this occasion, and presenting him 
in rather an amiable point of view : — 

“ Kenwood, Oct. 22. 1776. 

“My dear Lord, — I am exceedingly flattered by your letter, 
which I have just received ; because I know the friendly sincerity 
of the heart from whence it flows. You do justice to my view in 
this creation. Lady Stormont is five months gone with child. 
If it please God to bless Lord Stormont with issue male, I wish, 
from a pardonable vanity because common, that they may repre- 
sent my name as their first title. The manner of conferring this 
mark did great honour, and consequently gave great pleasure, to 

“ Your most affectionate, &e. 
“¢ MANSFIELD.” 

But we must now return to graver matters. Hostilities with 
America ere long began; and, notwithstanding frequent ap- 
peals to the principles of freedom from Lord Chatham, Lord 
Camden, and the opposition leaders in the House of Commons, 
there can be no doubt that the war in its origin was popular, 


LIFE OF LORD MANSFIELD. 


and that the vast majority of Englishmen approved of Lord 
Mansfield’s exhortations to crush rebellion and to pre- 
serve British ascendancy. His sentiments harmonised even 
with those of the city of London, where Wilkes had fallen 
into contempt. Therefore, when called upon to try Horne 
Tooke for a libel in taking part with the Americans, he felt 
none of the misgivings and apprehensions which had over- 
whelmed him on the trials of the printers of Junius. The 
demagogue who now struggled to bring the Government into 
odium, — notwithstanding his great acuteness and power of 
sarcasm,—was not very successful in gaining publicsympathy, 
—so that he was never able to rival Wilkes as the represent- 
ative of a popular constituency, — and never had even a taste 
of parliament till, very late in life, he became the nominee of 
the capricious owner of a rotten borough, who hesitated some 
time between him and a negro. 

The charge against him was for writing and publishing an 
advertisement, proposing a subscription * to be applied to the 
relief of the widows, orphans, and aged parents of our beloved 
American fellow-subjects, who, faithful to the character of 
Englishmen, preferring death to slavery, were, for that reason 
only, inhumanly murdered by the King’s troops at Lexing- 
ton and Concord, in the province of Massachusets.” He 
conducted his defence in person against Mr. Attorney 
General Thurlow. His great object seems to have been to 
provoke Lord Mansfield to a sally of impatience, of which he 
might have taken advantage; and he even cross-examined 
some printers of newspapers respecting their having been 
‘solicited not to insert any observations upon a late legal 
Earldom:” but he was completely foiled, for the Chief Justice 
remained throughout calm and placid, and, always felicitously 
seizing the right moment for the exercise of authority, gained 
an unsullied triumph. In summing up to the jury, he not 
only left to them his usual questions as to publication and the 
innuendoes, but, confident in their anti- Yankie feelings, he 
asked their opinion on the criminality of the alleged libel, 
saying, — 

“Read! You will form the conclusion yourselves: ‘Our be- 


loved American fellow-subjects,’ — in rebellion against the state ! 
Kk Kis 


503 


CHAR, 
XXXVI. 


Trial of 
John 
Horne 
Tooke for 
a libel. 
July 4. 
Batis 


504 


CHA'P, 
XXXVII. 


Disasters 
in Ame- 
rica, 


Feb. 1778. 


REIGN OF GEORGE III. 


They are our fellow-subjects, but not so absolutely beloved with- 
out exception! ‘ Beloved’ to many purposes: -beloved to be re- 
claimed ; beloved to be forgiven; beloved to have good done to 
them; but not beloved to be abetted in their rebellion! The in- 
formation charges the libel to relate to the King’s government and 
the employment of his troops. Read it, and see whether it does 
relate to them. If it does, what is the employment they are 
ordered upon? The paper says, ‘to murder innocent subjects, 
because they act like Englishmen and prefer liberty to slavery!’ 
Why, then, what are they who gave the orders? What are they 
who execute them? Draw the conclusion. Read this paper, and 
judge for yourselves. You will consider whether it conveys a 
harmless innocent proposition for the good and welfare of this 
kingdom, the support of the legislative government and the King’s 
authority according to law? Is the contest to reduce innocent sub- 
jects to slavery? and were those who fell fighting against the 
King’s troops at Lexington really murdered (as you have been 
told) like the unhappy victims who were massacred in their beds 
at Glenco?” 

The jury, after a short deliberation, found a verdict of 
Guilty ; and the defendant was sentenced to a year’s impri- 
sonment, and to pay a fine of 200/.* 

But the hope of speedily crushing the Americans, which 
had animated Lord Mansfield, and had induced the great 
bulk of the nation warmly to support the policy of the Go- 
vernment, was cruelly disappointed. Every fresh arrival 
showed the aspect of affairs beyond the Atlantic to be 
more and more alarming, and in the course of a few months 
came the stunning intelligence that General Burgoyne and 
his army had capitulated at Saratoga. The poignancy of 
Lord Mansfield’s grief at seeing all his predictions falsified, 
and being reproached as one of the principal authors of the 
measures which had proved so disastrous, was greatly agera- 
vated by the attempt to form a new administration, at the 
head of which was to be placed the man whom he most 
dreaded and most hated. His own office was secure, with all its 
great emoluments: but he was to lose power, which, notwith- 
standing his assertions and perhaps his belief to the contrary, 
he fondly cherished ; and he must either go into opposition, 


*°20 St. Tr. 651—802, 


LIFE OF LORD MANSFIELD. 


which was uncongenial to his nature, or become the humble 
supporter of an imperious rival. He was relieved from these 
apprehensions by the failure of the negotiation with Lord 
Chatham which had been entered into when France showed 
a determination to take part with the Americans; and he 
continued vigorously to support Lord North against all the 
proposals which were pressed upon him for renouncing our 
supremacy over the colonies, or for making concessions to 
them with a view to conciliation. Lord Chatham, who re- 
commended the latter course, still scorning the notion of 
American independence, seemed to become more formidable 
in intellect as his bodily faculties decayed; and, during his 
declamation against the employment of savages with scalp- 
ing-knives in carrying on the war, Lord Mansfield silently 
quailed under him, afraid of being blasted by the lightning 
of his wrath, while he spoke these scornful words: — “I do 
not call for vengeance on the heads of those who have been 
guilty; I only recommend retreat: let them walk off, and 
let them make haste, or speedy and condign punishment will 
overtake them.” 

It was indispensably necessary to meet such attacks with 
firmness, or to perish by them; and when Lord Chatham 
announced his intention, notwithstanding severe illness, to be 
present on the Duke of Richmond’s motion in the committee 
on the state of the nation, it was resolved that the friends 
of Government should answer him, — and Lord Mansfield, 
remembering conflicts with his great rival in which he him- 
self had the advantage, felt his courage revive. 

Fate had ordained that they should never have another 
conflict. The appointed day arrived. Lord Chatham ap- 
peared, and spoke some time with all his ancient fervour; 
but he perished in the effort. When, in the garb of sick- 
ness, he was led into the House between his son and son-in- 
law, Lord Mansfield joined in the voluntary tribute of respect 
paid to him by standing up while he passed to his proper place. 
Having risen slowly and with difficulty to address the House, 
supported under each arm by his relatives, the dying patriot 
took one hand from his crutch, and, raising it, and casting his 
eyes towards heaven, he thus began: — “I thank God that 


505 


CHAP. 
XXXVIT, 


AsDes LTT Gs 


Death of 
Lord 
Chatham. 
April 7. 


506 


CHAP. 
XXXVII. 


A.D. 1778. 


Lord 
Mansfield’s 
behaviour 
on this oc 
easion. 


REIGN OF GEORGE III. 


I have been enabled to come here this day to perform my 
duty, and to speak on a subject which has so deeply im- 
pressed my mind. I am old and infirm — have one foot, 
more than one foot, in the grave ; — I am risen from my bed 
to stand up in the cause of my country — perhaps never 
again to speak in this House.” Most who heard him were 
softened with pity, as well as struck with awe; but Lord 
Mansfield appeared to be thinking only of the topics which 
were likely to be urged by the assailant, and the best argu- 
ments to be used in answering him. ‘The exertion of the 
orator proving too mighty for his enfeebled frame, he sank in 
a swoon, and the House was thrown into alarm and agitation, 
— but Lord Mansfield so conducted himself as entirely to 
escape the charge of affected sorrow. 

We have the most authentic account of what then passed 
in a letter written immediately after to the Duke of Grafton, 
who was absent, by Lord Camden, who had been sitting by 
the side of Lord Chatham, and who thus describes the 
catastrophe : — 

«“ He fell back upon his seat, and was to all appearance in the 
agonies of death. This threw the whole House into confusion ; 
every person was upon his legs ina moment hurrying from one 
place to another, some sending for assistance, others producing 
salts, and others reviving spirits. Many crowding about the Earl | 
to observe his countenance, all affected, most part really con- 
cerned ; and even those who might have felt a secret pleasure at 
the accident, yet put on the appearance of distress, except only the 
Earl of M., who sat still, almost as much unmoved as the senseless 
body itself.” * 

An attempt has been made by a warm admirer and most 
eloquent eulogist of Lord Mansfield to rescue him from the 
charge of this supposed nonchalance, and to fix it upon 
another : — “ The Earl of M.,” says Lord Brougham, “so 
discreditably mentioned in this letter, must have been Lord 
Marchmont. In the Lords’ Journals for that day, April 7. 
1778, he and Lord Mansfield are the only Earls of M. 
present ; and Lord Mansfield was wholly incapable of suffer- 
ing such feelings to be seen on such an occasion.” f 


¥ See 19 Parl. Hist. 1012—1058. 
t Law Review, vol. ii, p. 316. 


LIFE OF LORD MANSFIELD. 


The Earl of Marchmont was present on this occasion, but 
I know not why insensibility should be imputed to him more 
than to his distinguished countryman ; and it is quite certain 
that zs demeanour would have excited no attention, — that 
all mankind must have been anxious to observe the impression 
made by the death-blow of Chatham on an old rival, —and 
that Lord Camden, writing to the Duke of Grafton, by “ the 
Earl of M.,” could mean none other than the Earl of Mans- 
field, whom they both knew so familiarly. Besides, I am not 
sure that the imputation, though maliciously meant, ought 
seriously to lower the object of it in our esteem, for it is 
not pretended that he betrayed any satisfaction; and, instead 
of idly proffering assistance, or hypocritically beating his 
bosom, he might have been thinking with some tenderness of 
their first meeting as students at Oxford, or calmly consider- 
ing how soon his own earthly career must be concluded. 

It cannot be denied, however, that he acted an un- 
generous part in the proceedings which were proposed to do 
honour to the memory of the deceased, and to mark the 
public gratitude for his services in advancing the glory and 
prosperity of the country. Upon an address of the House 
of Commons, the King having given directions that the 
remains of the great patriot should be deposited in West- 
minster Abbey, Lord Shelburne gave notice of a motion in 
the House of Lords, that their Lordships should all attend 
the funeral. Although there was a strong canvass, Lord 
Mansfield could not make up his mind to vote either for it or 
against it. He pusillanimously absented himself; and, upon a 
division, the motion was negatived by a majority of one.* 

If he thought that the Peers, in their aggregate capacity, 
should not pay such homage to an individual from whose 
opinions they had generally differed, he might, without sus- 
picion of political inconsistency, have attended the solemnity 
as a private person, to show his respect for the splendid 
talents and acknowledged virtues of him whom he had known 
intimately when a boy, and with whom he had been engaged 
in a competition for honourable distinction above half a 
century. But while the Court could not resist the general 





* Lords’ Journals, 19 Parl, Hist, 1233. 


507 


CHAP. 
XXXVII. 


A.D. 1778, 


508 


CHAP. 
XXXVILI. 


— 


A.D. 1778. 


REIGN OF GEORGE III. 


impulse in favour of a public funeral, all true courtiers 
endeavoured to diminish the effect of it; and Lord Mansfield’s 
name is not to be found in the list of those who saw con- 
signed to the tomb the dust of the greatest orator and states- 
man England had produced for ages.* 

An opportunity soon occurred to him for relieving himself 
from the uneasy feelings which must have annoyed him 
when he reflected on his paltry conduct. The bill for 
annexing an annuity of 4000/. a-year to Lord Chatham’s 
title, which had passed the House of Commons almost 
unanimously, was strongly opposed in the House of Lords; 
and the Lord Chancellor, and other members of the party 
called the “ King’s Friends,” not only objected to it on 
the score of economy, but made violent attacks on the 
career and character of the deceased Earl, — even depre- 
ciating his talents.+ Lord Mansfield was present, but re- 
mained silent.{ J am afraid it is impossible to doubt that 
on this and other occasions he displayed a want of heart, as 
well as of moral courage. But we must not hate or despise 
him for these infirmities: if, to the great qualities which he 
actually possessed, he had added the boldness of Chatham and 
the friendly enthusiasm of Camden, he would have been too 
perfect for human nature. 


* « Lord Chatham’s funeral was meanly attended, and Government in- 
geniously contrived to secure the double odium of suffering the thing to be 
done and of doing it with an ill grace.” (Gibbon’s Misc. Works, vol. i. p. 538.) 
The Annual Register for 1778, however, says that “the funeral was attended 
by a great number of lords, mostly in the minority.” 

+ Thurlow, in his coarse bantering manner, concluded with a parody upon 
the stanza in Chevy Chase respecting the death of Percy : — 


“ Now God be with him,” said our King, 
“ Sith ’twill no better be, 
I trust I have within my realm 
Five bundred as good as he.” 


On a division the numbers were, for the bill 42, against it 11. I have not 
been able to find out with certainty how Lord Mansfield voted. There was a 
protest, setting forth that “this may in after-times be made use of as a precedent 
for factious purposes, and to the enriching of private families at the public 
expense ;” but this was not signed by Lord Mansfield, and only by one prelate 
and three temporal peers. —19 Parl. Hist. 1233—1255. 


LIFE OF LORD MANSFIELD. 


CHAPTER XXXVIII. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE 
CONCLUSION OF THE TRIAL OF LORD GEORGE GORDON. 


Lorp MANSFIELD and his friends expected that after the 
death of Chatham he would have an unbounded ascendancy in 
the House of Lords; but it is an undoubted fact that from 
this time his political importance greatly declined. He was 
not so much wanted as the champion of the Government, and 
the stimulus which had excited him to his finest parliamentary 
displays was gone. Thurlow, firmly seated on the woolsack, 
proved himself a match in debate for any member of Opposi- 
tion; and he gallantly defended all ministerial measures till 
the nation, universally become sick of the war which they had 
once so much approved, foreed Lord North to resign, that a 
negotiation might be opened with our revolted colonies as an 
independent state. 

I find only one speech of Lord Mansfield upon the Ame- 
rican question after Lord Chatham’s death; and, strange to 
say, in this he recommends a coalition between the parties 
into which the state was then divided: but we must recol- 
lect that he no longer dreaded seeing in council him whom 
he and the King so mortally hated, and that there was 
no chance of the Government being able to carry on the 
war without some great accession to its strength. At the 


509 


CHAP. 
XXXVIIIL 


Decline of 
Lord 
Mansfield’s 
political 
importance 
after the 
death of 
Lord 
Chatham. 


Noy. 25, 


meeting of parliament in November, 1779, the Marquis of !779- 


Rockingham, in opposing the address, moved an amend- 
ment which, after drawing a contrast between the happy 
state of affairs at the accession of his Majesty and the 
lamentable one to which the nation was reduced, represented 
to his Majesty that “if any thing could prevent the consum- 
mation of public ruin, it could only be new councils and new 


510 


CHAP. 
XXXVI. 


A.D. 1779, 


He re- 

commends 
a coalition 
of parties. 


REIGN OF GEORGE III. 


counsellors.” Lord Mansfield took a review of the different 
administrations which had succeeded each other during the 
present reign; showing that each of them was as much 
answerable for the disasters now deplored as the present ad- 
ministration, in whose time they had actually occurred : — 

“ The tax on tea,” said he, “sowed the seeds of the present 
rebellion; and that was imposed by the noble Duke in the blue 
ribbon, who now complains so bitterly of the measures of the Go- 
vernment. I will give no opinion at present whether it was a wise 
tax or not; but it was sanctioned by the noble and learned Lord 
[Lord Camden] who has denounced with such bitterness all who 
have advised the Crown since he resigned: and a noble Earl, 
who may now be considered the most active leader. of Opposition 
then had a seat in his Majesty’s councils, and never openly ob- 
jected to it. To suppose that he privately condemned, and yet 
appeared in parliament to support it, is an imputation that I 
would not throw upon him or upon any member of this assembly. 
The present Ministers neither passed the Stamp Act nor repealed 
it, nor imposed the tea duty nor induced the Americans to resist 
it. Why should they only be punished when the crime is com- 
mon? and why should they be punished by the true authors of the 
misfortunes laid to their charge? But, my Lords, let us rather 
consider how the nation can be rescued from the perils which sur- 
round it. I say that nothing but a full and comprehensive union 
of all parties can effect its salvation. I am old enough to re- 
member the country in very embarrassed situations —none, I 
acknowledge, like the present. I have seen violent party struggles 
—none so violent as the present. Nevertheless, I by no means 
despair.” Having alluded to the arrangement made on the retire- 
ment of Sir Robert Walpole, and the formation of Lord Chat- 
ham’s first administration, he continued : — “ I had a hand in that 
negotiation, and what was the consequence? ‘Two persons only, 
after some fluctuation, were taken in; yet by so immaterial a 
change the nation was satisfied, a coalition ensued, and the effect 
of that seasonable union was the immense accession of territory 
made in the course of the late glorious war. How far the temper 
of the nation or the state of parties may admit of a coalition at 
present, I will not pretend to determine; but, my Lords, it is 
an event most earnestly to be desired, for the country requires the 
assistance of every heart and hand ; and with such co-operation, 
although I am far from desponding, I shall still anxiously await 
the event. My resolution is firm, but my confidence staggers.” 


LIFE OF LORD MANSFIELD. 


Still the Government was strong in point of numbers, and 
the amendment was negatived by a majority of 82 to 41.* 

I now approach scenes which are most discreditable to the 
English nation, but in which Lord Mansfield appears to the 
highest advantage. To explain why he was the special ob- 
ject of the fury of the fanatical mob headed by Lord George 
Gordon and for several days in possession of the capital, I 
must go back to some of his decisions on questions con- 
nected with religion. He was actuated by the enlightened 
principles of toleration; and, although a sincere friend to 
the Church of England, he steadily protected, by the shield 
of the law, both Dissenters and Roman Catholics from the 
assaults of bigots who wished to oppress them. 

Lord Mansfield was the first judge who extended the pre- 
rogative writ of mandamus to enforce the admission of a 
dissenting minister to an endowed chapel: saying, — 

“ The right itself being recent, there can be no direct ancient 
precedent ; but every case of a lecturer, preacher, schoolmaster, 
curate, or chaplain, is in point. Here is a function with emo- 
luments and no specific legal remedy. ‘The right depends upon 
election, which interests all the voters. The subject is of a nature 
to inflame men’s passions. Should the Court deny this remedy, 
the congregation may be tempted to resort to force. A dispute as 
to who shall preach Christian charity, may well raise implacable 
feuds and animosities, in breach of the public peace, to the re- 
proach of government and the scandal of religion. Were we to 
deny the writ, we should put Presbyterian Dissenters and their 
religious worship out of the protection of the law.” 

The question having arisen whether, in an action to re- 
cover penalties for bribery, a Quaker could be admitted as a 
witness on his affirmation without taking an oath, Lord 
Mansfield said, — 

“This question is of great importance to all the Quakers in the 
kingdom, and to the general administration of justice. I wish the 
affirmation of a Quaker had been put on the same footing as an 
oath in all cases whatsoever ; and I see no reason against it, for 
the punishment of the breach of it is the same. Upon general 
principles I think the affirmation of a Quaker ought to be admitted 


* 20 Parl. Hist. 1020—1092. 
t 3 Burr. 1269,; Holl. 263.; Rex v. Barker, 


511 


CHAP. 
XXXVIII. 


— 


A.D. 1780. 
Lord 
George 
Gordon’s 
riots. 





Lord 
Mansfield’s 
love of 
religious 
toleration. 


Remedy to 
dissenting 
ministers. 


Evidence 
of a 
Quaker 
admitted in 
an action 


for bribery. 


512 


CHAP. 
XXXVIII. 





A.p. 1780. 


A Dis- 
senter not 
liable to a 
penalty for 
not accept- 
ing an 
office re- 
quiring 
conformity 
to the Es- 
tablished 
Church. 


REIGN OF GEORGE III. 


in all cases, as well as the oath of a Jew or a Gentoo, or of any other 
person who thinks himself really bound by the mode and form in 
which he attests. But even the limited indulgence which they 
enjoy was obtained with much difficulty and after a long struggle. 
The legislature formerly looked upon Nonconformists as criminals ; 
and Quakers, in particular, as obstinate offenders. This only 
served to increase their number. If they had been let alone, per- 
haps they would not have come down to these times. ‘The more 
generous and liberal notions of the present age do not look upon 
real scruples in the light of an offence. However, Quakers are still 
excluded from giving evidence in ‘ criminal causes,’ * and we are 
to say what was the meaning of the legislature by this exclusion. 
Although it may not be possible to give any good reason for the 
exception, it was made and it must be followed. But, being a hard 
positive law, it is not to be extended by construction. Now, 
although bribery is a crime, this action to recover penalties for 
bribery is a civil cause, as much as an action for money had and 
received. The exception must be confined to cases technically 
criminal. A different construction would not only be injurious to 
Quakers, but prejudicial to the rest of the King’s subjects who 
may want their testimony.” f 


A still nobler opportunity was afforded to Lord Mansfield 
of showing his liberality in matters of religion, when the 
corporation of the city of London, wishing at once to swell 
their revenues and to punish Dissenters, passed a bye-law 
inflicting a heavy pecuniary mulct upon freemen who, being 
elected, should not serve the office of sheriff; and then elected 
a dissenter, who they knew would not serve, as he could not 
take the sacrament according to the rites of the Church of 
England. This gentleman, being sued for the penalty, 
pleaded, by way of defence, that “he was a Dissenter, and 
therefore was incapable of serving.” This plea was over- 
ruled in the court in which the action was commenced, but 
the case ultimately came by appeal before the House of 
Lords. Fortunately we have an authentic account of Lord 


Mansfield’s judgment, recommending a reversal. It was 


* 7&8 W. III. . 34. 
+ Atcheson v. Everett, Cowp. 382. The exception, so modified, continued 
in force above half a century longer; but if a man is now falsely accused of 


murder, he may escape the gallows by calling a Quaker to prove his innocence. 
See 9 Geo. IV. c. 32.; 3& 4 W. IV. c. 49. 


LIFE OF LORD MANSFIELD. 


taken down by Dr. Philip Faraceaux, a famous Presbyterian 
divine, who was present when it was delivered, and his report 
of it was afterwards revised by Lord Mansfield. Although 
of great length, the whole of it may be perused with delight, 
but I can only afford to introduce a few extracts from it : — 

“ There is no usage or custom independent of positive law which 
makes Nonconformity a crime. ‘The eternal principles of natural 
religion are part of the common law; the essential principles of 
revealed religion are part of the common law ; — so that any person 
reviling, subverting, or ridiculing them, may be prosecuted at com- 
mon law.* But it cannot be shown from the principles of natural 
or revealed religion that, independent of positive law, temporal 
punishments ought to be inflicted for mere opinions with respect 
to particular modes of worship. Persecution for a sincere, though 
erroneous, conscience is not to be deduced from reason or the 
fitness of things. . . . . Conscience is not controllable by human 
laws, nor amenable to human tribunals. Persecution, or attempts 
to force conscience, will never produce conviction, and are only 
calculated to make hypocrites or martyrs. 

“ My Lords, there never was a single instance, from the 
Saxon times down to our own, in which a man was punished for 
erroneous opinions concerning rites or modes of worship, but upon 
some positive law. ‘The common law of England, which is only 
common reason or usage, knows of no persecution for mere opi- 
nions. For atheism, blasphemy, and reviling the Christian re- 
ligion, there have been instances of persons prosecuted and 
punished upon the common law ; but bare nonconformity is no sin 
by the common law ; and all positive laws, inflicting any pains or 
penalties for nonconformity to the established rites or modes, are 
repealed by the Act of Toleration, and Dissenters are thereby 
exempted from all ecclesiastical censures. What bloodshed and 
confusion have been occasioned from the reign of Henry IV., when 
the first penal statutes were enacted, down to the revolution in this 
kingdom, by laws made to force conscience! There is nothing 
certainly more unreasonable, more inconsistent with the rights of 
human nature, more contrary to the spirit and precepts of the 
Christian religion, more iniquitous and unjust, more impolitic, 
than persecution. It is against natural religion, revealed religion, 
and sound policy. Sad experience and a large mind taught that 


* This, I think, is the true sense of the often-repeated maxim, that 
“ Christianity is part and parcel of the common law of England,” 


VOL. II. ) Li 


513 


CHAP. 
XXXVIII. 


a.p. 1780, 


514 


CHAP. 
XXXVIII. 


A.D. 1780. 


Acquittal 
ofa Roman 
Catholic 
priest 
charged 
with the 
crime of 
saying 
mass, 


REIGN OF GEORGE III. 


ereat man, the President De Thou, this doctrine. Let any man 
read the many admirable things which, though a papist, he hath 
dared to advance on this subject, in the dedication of his history 
to Henry IV. of France (which I never read without rapture), and 
he will be fully convinced, not only how cruel but how impolitic it 
is to prosecute for religious opinions. ‘There was no occasion to 
revoke the edict of Nantes ; the Jesuits needed only to have ad- 
vised a plan similar to that which is contended for in the present 
case: make a law to render them incapable of office; make another 
to punish them for not serving, If they accept, punish them (for 
it is admitted on all hands, that the defendant, in the cause before 
your Lordships, is prosecutable for taking the office upon him) — If 
they accept, punish them; if they refuse, punish them: if they say 
yes, punish them ; if they say no, punish them. My Lords, this isa 
most exquisite dilemma, from which there is no escaping; it isa 
trap a man cannot get out of ;— it isas bad persecution as that of 
Procrustes: if they are too short, stretch them; if they are too 
long, lop them.” 

This noble vindication of the rights of conscience produced 
an unanimous reversal of the decree of the Lord Mayor's 
Court, but caused considerable clamour in the City; and 
Lord Mansfield was set down with many as “ little better 
than an infidel.” 

What completed his bad name, was his direction to the 
jury in an action brought against a person, alleged to be a 
Roman Catholic priest, for celebrating mass, which, as the 
law then stood, subjected him, if found guilty, to a very se- 
vere penalty. I must confess that the effort made on this 
occasion to evade an obnoxious penal statute can hardly be 
justified, and that the better course would have been to allow 
it to be enforced, so that, its injustice being made manifest, 
it might more speedily be repealed. From the commentaries 
upon the evidence there can be little doubt that it was really 
sufficient to make out the case : — 

Lord Mansfield: “There are here two questions for your con- 
sideration: Ist. Is the defendant a priest? 2d. Did he say mass ? 
By the statute of Queen Elizabeth it is high treason for any man 
proved to bea Popish priest to breathe in thiskingdom. By what 
was considered a mild enactment in the reign of William IIL, a 
Popish priest convicted of exercising his functions is subject to fine 
and perpetual imprisonment. But, first, he is to be proved to be a 


LIFE OF LORD MANSFIELD. 


priest, for, unless he be a priest, he cannot be touched for the enor- 
mity of saying mass; and then, unless he be proved to have said 
mass, the crime of being a priest will escape with impunity. Now 
the only witness to the mass is Payne—a very illiterate man, who 
knows nothing of Latin, the language in which it is said: and, 
moreover, he, as informer, is witness in his own cause; for, upon 
conviction, he is entitled to 100/. reward. Several others were 
called, but not one of them would venture to swear that he saw 
the defendant say mass. One swore that he sprinkled with holy 
water; another, that he addressed some prayers to the Virgin 
Mary in English ; another, that he heard him preach, and, being 
asked what the sermon was about, observed that ‘it taught the 
people that good works were necessary to salvation — a doctrine 
which he looked upon as wholly at variance with the Protestant 
religion!’ Then, as to the defendant being a priest, you are not 
to infer that because he preached; for laymen often perform this 
office with us, and a deacon may preach in the Church of Rome. 
A deacon may be a cardinal, —if he may not be Pope. A deacon 
may even administer some of their sacraments, and perform many 
of their services; and we do not know that he may not elevate 
the Host—at least I do not know but he may, and I am persuaded 
you know nothing about it. If a deacon may perform all the 
ceremonies to which Payne swears, there is no evidence that the 
defendant is a priest. Why do they not call some one who was 
present at his ordination? You must not infer that he is a priest 
because he said mass, and that he said mass because he is a 
priest.* At the Reformation, they thought it in some measure 
necessary to pass these penal laws; for then the Pope had great 
power, and the Jesuits were then a very formidable body. Now 
the Pope has little power, and it seems to grow less every day. 
As for the Jesuits, they are now banished from almost every state 
in Europe. ‘These penal laws were not meant to be enforced 
except at proper seasons, when there is a necessity for it; or, 
more properly speaking, they were not meant to be enforced at 
all, but were merely made in ferrorem. Now, when you have 
considered all these things, you will say if the evidence satisfies 
you. Take notice, if you bring him in guilty the punishment is 


* This reminds me of the judge who, much disliking the game laws, and 
trying an action against a man for using a gun to kill game without being qua- 
lified, when it had been proved that the defendant, being in a stubble field with 
a pointer, fired his gun at a covey of partridges, and shot two of them, objected 
that there was no evidence that the gun was loaded with shot, and advised the 
jury to conclude that the birds fell down dead from the fright. 


LL 


515 


CHAP. 
XXXVIII. 


A.p. 1780. 


516 


CHAP. 
XXXVIII. 


A.D. 1780. 


Bill to 
mitigate 
the penal 
laws 
against 
Catholics. 
A.D. 1778. 


Anti- 
Popery 
riots and 
petitions. 


Violent 
speech of 
Lord 
George 
Gordon in 
the House 
of Com- 
mons, 


‘REIGN OF GEORGE III. 


very severe; a dreadful punishment indeed! Nothing less than 
perpetual imprisonment |” * 

The jury found a verdict of Not Guilty; but many zealous 
Protestants were much scandalized, and rumours were spread 
that the Chief Justice was not only a Jacobite but a Papist, 
and some eyen asserted that he was a Jesuit in disguise. 

He continued, nevertheless, steadily to support the cause 
of religious liberty; and when the bill was brought forward 
to repeal so much of the act of William as condemns a Popish 
priest to fine and perpetual imprisonment for saying mass, 
and disqualifies a Papist to be the owner of land by inherit- 
ance or purchase, he expressed his entire approbation of it, 
although it passed with so little opposition, that there was no 
occasion for his taking any prominent part in supporting it.f 

Measures which touch religious prejudices usually excite 
much clamour when first proposed, but when carried through 
are quietly acquiesced in. This Catholic Relief Bill, however, 
after having been quietly agreed to in parliament, excited a 
violent ebullition of bigotry almost all over Great Britain. 
The public peace was first disturbed in Scotland, where in- 
temperate resolutions and addresses were voted by the General 
Assembly of the Kirk, dangerous riots ensued, and several 
Roman Catholic places of worship were burnt to the ground.{ 
Lord George Gordon was the organ in the House of Com- 
mons of the Scotch anti-popery party, and, in presenting 
their petitions against the recent concessions to the followers 
of Antichrist, described the people of Scotland as “ ripe for 
insurrection and rebellion,” and affirmed that “ the inhabitants 
fit to bear arms, a few Papists excepted, were ready to resist 
the powers of the Government, and had invited him to be 
their leader.” Finally, he declared that ‘ the religious con- 


* Holl., p. 176—179. 

+ See 18 Geo. III. ce. 61. Compare this with the trial of a Roman Catholie 
priest before Scroggs, ante, p. 11. 

¢ The delusion of my countrymen on this occasion may be best understood 
from a proclamation by the lord provost and magistrates of Edinburgh, declar- 
ing that “to remove the fears and apprehensions which had distressed the minds 
of many well-meaning people in the metropolis, with regard to the repeal of the 
penal statutes against Papists, the public were informed that the act of parlia- 
ment passed for that purpose was totally laid aside, and therefore it was expected 
that all peaceable subjects would carefully avoid connecting themselves with 
any tumultuous assembly for the future.” 


LIFE OF LORD MANSFIELD. 


stitution of Scotland was sacred against any law the Parlia- 
ment of Great Britain might enact for its alteration; that 
any such attempt was an nated breach of the fundamental 
conditions on which the union of the two kingdoms had been 
agreed to; and that the Scotch, being an independent nation 
when they entered into that treaty, henceforth resuming their 
ancient rights, would prefer death to slavery, and perish with 
arms in their hands or prevail in the contest.” * 

The South soon caught the fanatical flame. Protestant 
clubs were formed in London and in all the great towns in 
England; and, to oppose Popery with sufficient force, “ The 
General Protestant Association ” was formed, of which Lord 
George Gordon was chosen president. When Parliament 
again met, he not only inveighed against judges, but said, 
** The people were irritated and exasperated, being convinced 
that the King himself was a Papist ;” and he averred that “ if 
his Majesty did not keep his coronation oath, they would do 
more than abridge his revenue; they would cut off his head.” 

By the unchecked repetition of such ribaldry in debating 
societies, which were then the chief instruments of agitation, 
the populace were excited to a high pitch of frenzy, and were 
prepared for any violence. At last a “ monster petition” to 
the House of Commons was got up against the spread of 
Popery ; and it was resolved that “ on Friday, the 2d of June, 
the whole body of the Protestant Association would assemble 
in St. George’s Fields, with blue cockades in their hats, to 
distinguish real Protestants and friends of the petition from 
their enemies.” 

At the appointed time the petitioners, in blue cockades, 
mustered 60,000 strong, very near the place selected by the 
Chartists with similar views on the memorable 10th of April, 
1848; and they intimated the same resolution, that ‘they 
would cross the Thames by one of the bridges, march in pro- 
cession through the City, and present their petition with 
their own hands.” ‘They believed that the legislature would 
be overawed by their numbers, and they were determined to 
resist any attempt to control them. The Government, al- 
though fully aware of their intentions, forbad neither the 


* 20 Parl. Hist. 622 
jv ee 


517 


hes 
XXVIII 


A.D. 1780. 


Monster 
petition 
from the 
Protestant 
Association 
to the 
House of 
Commons. 


Meeting in 
St. George’s 
Fields. 


518 


CHAP. 
XXXVIII. 


A.D. 1780. 


Assault on 
the Peers. 


REIGN OF GEORGE III. 


meeting nor the procession, — neither stationed soldiers near 
the scene of apprehended danger, nor swore in special con- 
stables in aid of the parish beadles, who were then the only 
police in the metropolis, —nor took any step whatever for the 
preservation of the public tranquillity, more than if there had 
been an announcement of gambols in the streets by a band 
of morris-dancers. Accordingly the procession, headed by 
Lord George Gordon, crossed London Bridge, marched 
through the City, and, before the usual hour for the assem- 
bling of the two Houses, had gained undisputed possession 
of Palace Yard and all the surrounding streets. 

Tt is not for me to describe the scene in the House of 
Commons when the mob took possession of the lobby, amidst 
cries of “ No Popery!” My duty confines me-to the out- 
rages of which Lord Mansfield was the witness and the 
object. On account of the illness of Lord Chancellor Thur- 
low, he was this day to preside as Speaker of the House of 
Lords. In Parliament Street, being recognised by the mob, 
dreadful execrations were uttered against him as a notorious 
Papist, and the windows of his carriage were broken. By 
the vigour of his coachman he reached the door through which 
he was to ascend to his robing-room, and the messengers of the 
House afforded him some protection from the ruffians who 
threatened him. Nevertheless he was very ill treated, and 
when he came into the House he could not conceal his torn 
robe and his dishevelled wig. With calm dignity he took his 
place on the woolsack ; for, though deficient in moral, he was 
possessed of great personal courage. 

Other peers who followed had fared much worse. Lords 
Hillsborough, Townshend, and Stormont received many blows, — 
and were in danger of their lives. ‘The Archbishop of York 
had his lawn sleeves torn off and flung in his face. The 
Bishop of Lincoln, still more deeply suspected of popery, 
after his carriage had been broken to pieces, was carried in a 
fainting-fit into a private house in the neighbourhood, from 
which he was obliged to fly in disguise over the roofs of the 
adjoining buildings. The Duke of Northumberland bringing 
along with him a gentleman habited in black, the cry was 
raised that this was “a Jesuit. employed by him as his con- 


LIFE OF LORD MANSFIELD. 


fessor ;” upon which he was forced out of his carriage, was 


robbed of his watch and purse, and had his clothes torn to 


519 


CHAP. 
XXXVIII. 


pieces. Prayers were said; and the thanksgiving introduced 4.». 1780. 


at the time of the Gunpowder Plot, and stiil daily repeated, 
was once more applicable: —‘ We yield Thee praise and 
thanksgiving for our deliverance from those great and ap- 
parent dangers wherewith we were compassed in this place.” 
It happened, curiously enough, that the Lords were sum- 
moned to consider a bill of the Duke of Richmond for the 
Reform of Parliament by the introduction of annual parlia- 
ments and universal suffrage. At first they were resolved to 
play the part of Roman senators, and, if they were to be 
massacred, to meet their end all sitting in their places and in 
the discharge of their senatorial functions. Accordingly, the 
order of the day being read, the Duke of Richmond rose, and 
descanted some time on the defects and abuses of our repre- 
sentative system, and the certain cure which he had to pro- 
pose for them. But his hearers were thinking much more of 
their personal safety than of disfranchising Old Sarum or 
giving members to Manchester, for the yells of the mob in 
Palace Yard became every moment more furious. At last 
Lord Montfort, looking ghastly, and covered all over with 
mud and hair-powder, burst into the assembly and began to 
vociferate. The Duke of Richmond complained of the in- 
terruption, and appealed to the woolsack for protection. 
Lord Mansfield tried to restore order, but Lord Montfort 
insisted on being heard “in affair of life and death, for Lord 
Boston, coming to his duty as a peer of parliament, had been 
dragged out of his carriage by the mob, who would certainly 
murder him if he were not immediately rescued from their 
violence.” ‘ At this instant,” says a contemporaneous account, 
“it is hardly possible to conceive a more grotesque appear- 
ance than the House exhibited. Some of their Lordships 
with their hair about their shoulders; others smothered with 
dirt; most of them as pale as the Ghost in Hamlet; and all of 
them standing up in their several places, and speaking at the 
same instant. One lord proposed to send for the guards, 
another for the justices or civil magistrates ; many crying out 


‘Adjourn! adjourn!’ while the skies resounded with the 
LL 4 


520 


CHAP. 


XXXVIII. 


A.D. 1780. 


Great 
courage 
displayed 
by Lord 


Mansfield. 


REIGN OF GEORGE Iil. 


huzzas, shoutings, or hootings and hissings in Palace Yard. 
This scene of unprecedented alarm continued for about half 
an hour.” * 

Long after the time when it might have been expected 
that Lord Boston had met his fate, Lord Townshend offered 
to be one that would go in a body and attempt his rescue. 
The Duke of Richmond volunteered to be of the party, but 
said “if they went as a house the mace ought to be carried 
before the noble and learned Lord on the woolsack, who must 
go at their head.” Lord Mansfield: “ My Lords, I am 
ready to do all that your Lordships and my duty may require 
of me.” ‘The Duke of Gloucester disapproved of the Speaker 
and the mace going down, as, besides the possible danger to 
the person of the noble and learned Lord on the woolsack, 
the mob were so outrageous, that they would pay no more 
respect to the mace than to such of their Lordships as had 
been so dreadfully maltreated. At this moment Lord Boston 
made his appearance in the House, having sustained very 
little damage, for he had engaged some of the theological 
leaders of the mob in a controversy on the question “ whether 
the Pope really be Antichrist?” and he had escaped merely 
with dishevelled hair and his clothes being covered over with 
hair-powder. He gave, however, a very formidable account 
of the increasing numbers and fury of the assailants. 

After a long altercation between the opposition and minis- 
terial Peers respecting the misconduct of the Government in 
taking no precautions to preserve the public peace, Lord 
Mansfield ordered the Black Rod to summon before them the 
High Bailiff of Westminster. This officer soon attended, 
and stated that “he had received no communication from the 
Secretary of State, but, attracted by the disturbance, he had 
done his utmost to restore tranquillity: as yet, he had only 
been able to collect six constables, who were waiting in the 
Guildhall till more could be fetched, as no good could be done 
with so small a force.” 

Lord Mansfield: “Perhaps you are not to be blamed for what 
has hitherto occurred; but I now command you, in the name of 


* 921 Parl. Hist. 669. 


LIFE OF LORD MANSFIELD. 


this House, to go round immediately to all justices of the peace 
in the city of Westminster, and in this division of the county of 
Middlesex, and instruct them to order all the King’s loyal subjects 
of competent age to assist in quelling this riot, that life may be 
preserved, and the law may be respected.” 

The Peers, however, were rather frightened than re- 
assured : the Duke of Richmond abandoning his motion, they 
insisted on an immediate adjournment, and, with the excep- 
tion of the noble and learned Lord on the woolsack, they all 
acted on the maxim of sauve qui peut. ‘ The adjournment 
having taken place at nine o'clock,” says the Parliamentary 
History, “ the House gradually thinned, most of the Lords 
having either retired to the coffee-houses or gone off in 
hackney carriages, while others walked home under the 
favour of the dusk of the evening. But the most remarkable 
circumstance was, that Lord Mansfield, in the seventy-sixth 
year of his age, was left alone and unprotected, except by the 
officers of the House and his own servants.” * 

The art of improvising revolutions had not then been in- 
vented, or Lord George Gordon and his associates, this very 
evening, might have installed a provisional government, con- 
stituted a committee of public safety, and called an assembly 
of the people, to be returned only by true Protestants to 
re-enact and to aggravate all the laws against Papists. 
They had the metropolis entirely in their power, for the 
House of Commons had likewise pusillanimously resorted to 
the expedient of an adjournment to ayoid the open disgrace 
of being overwhelmed by brute violence; and there was no 
more efficient protection for either branch of the legislature 
than the six constables in the Guildhall at Westminster. But, 
strange to say, when the “ Associates ” ascertained that both 
Houses had adjourned, content with their triumph, they 
marched off to other quarters of the town, and, having amused 
themselves with burning down the chapels of the Sardinian 
and Bavarian ambassadors, in which the idolatrous sacrifice of 
the mass had been performed, they dispersed for the night. 


* Vol. xxi. p.672. I observe with great pride that'on this occasion the “ Law 
Lord” showed much more courage than any other member of the House, 
spiritual or temporal. 


521 


CHAP. 
XXXVIII. 


A.D. 1780. 


He is 
deserted by 
all his 
brother 
peers, 


522 


CHAP. 


XXXVIIE. 


A.p. 1780. 


He gets 
home in 
safety. 


REIGN OF GEORGE III. 


Thus Lord Mansfield, although seemingly abandoned to de- 
struction by all his brother peers, after waiting about two 
hours in his private room, and drinking a cup of tea, drove 
home to his house in Bloomsbury Square as quietly as if, since 
time began, Parliament Street and the Strand had only 
listened to the drowsy notes of the watchman calling the 
hour and announcing a cloudy or a starlight night, nor had 
ever been startled by the cry of “« No Pormry !” 

But this was only the lull of the tempest. Day after day 
the violence of the mob increased. Being still unchecked by 
civil or military authority, they altered their views, and, Lord 
George Gordon having abdicated, he was replaced by more 
dangerous leaders. Many now joined the ranks of the in- 
surgents who were indifferent about religion, and thought only 
of devastation and plunder. On Tuesday the 6th of June, the 
two Houses, anticipating the fate which befell the French 
Chamber of Deputies on the 24th of February, 1848, of being 
forcibly dispersed, adjourned for a fortnight, by which time it 
was hoped that order in the metropolis might be restored. But 
the fury of the insurgents was increased when all legitimate 
authority seemed to tremble before them. They likewise be- 
came more and more exasperated against Lord Mansfield, 
whose demerits as a friend to religious liberty were greatly 
agoravated in their eyes by rumours of the determination and 
firmness he had displayed on the evening when the riots first 
began. 

Next day the insurrection was at its height. Newgate 
and the other prisons of the metropolis were stormed, and 
all their inmates set at liberty; the Inns of Court were be- 
sieged; preparations were made for attacking the Bank of 
England; distilleries belonging to Roman Catholics were set 
on fire; and the kennels ran gin, by which thousands in the 
streets were degraded into a state of beastly intoxication. 
Some bodies of soldiers were shown to the rioters to irritate 
them without doing any thing to check their excesses, — and, 
after this ill-judged activity, the Government seemed com- 
pletely paralysed. Still the great object of vengeance was 
Lord Mansfield, — the fanatics abhorring him for his sen- 
timents in favour of religious toleration, and the thieves 


LIFE OF LORD MANSFIELD. 


regarding him with apprehension as the president of the first 
criminal court in the kingdom. They did not intimate any 
intention of violence to his person, but they now openly de- 
clared that, before morning, they would burn his house in 
Bloomsbury Square, and all the property it contained. He 
had continued to reside there with his family, unaware of his 
danger.— According to the example of his predecessors, the 
Grand Justiciars and former Chief Justices, down to the time 
of Lord Holt, he ought, as supreme conservator of the peace, 
to have called forth the civil power, and, marching in person 
at the head of his levies, have taken the necessary steps for 
quelling the insurrection; but, ever after the accession of 
the House of Hanover, such functions were left entirely to 
the executive government, and he had not in any way inter- 
fered since the night of the assault upon the House of Lords. 

fterwards he used to say “ that perhaps some blame might 
have attached upon himself as well as on others in authority, 
for their forbearance in not having directed force to have 
been, at the first moment, repelled by force, — it being the 
highest humanity to check the infancy of tumults.” * 

The threatenings of the mob being narrated to Sir John 
Hawkins and another Middlesex magistrate, they proceeded, 
with a detachment of the guards, to Bloomsbury Square. 
Obtaining an interview with Lord Mansfield, they informed 
him of his danger, and proposed to station the soldiers in and 
around his house. To this he strongly objected, insisting 
that they should be marched off and concealed in a church at 
some distance. He was not actuated by any pedantic scru- 
ples about the lawfulness of employing the military on such 
an occasion, but he thought that the mob might be exaspe- 
rated by the appearance of red coats, and trusted to the 
reverence habitually shown in England to the judges of the 
land in times of the greatest excitement and by the most 
abandoned classes. A pause of nearly half an hour occurred, 
and hopes were entertained that the alarm was groundless,— 
when distant yells were heard; and it was ascertained that 
an immense multitude, carrying torches and combustibles, 
were marching down Holborn, and entering Bloomsbury 


* Erskine’s Speeches, vol. iii. p. 33. 


523 


CHAP. 
XXXVIII. 


A.D. 1780. 


524 


CHAP. 


XXXVIII. 


A.D. 1780. 


His house 
is burnt 
down by 
the mob, 


REIGN OF GEORGE IIi. 


Square. Lord Mansfield did not immediately fly, — not 
even when he saw them making for the north-east corner of 
the square, in which his house stood; but when they began 
to batter his outer door, he retreated by a back passage with 
the Countess; and he had hardly escaped from their fury 
when their leaders were seen at the upper windows, tearing 
down and throwing over furniture, curtains, hangings, pic- 
tures, books, papers, and every thing they could lay their 
hands on, likely to serve as fuel for the fire which was already 
blazing below. In this instance resembling a Paris mob, 
they declared that there was to be no pillage, and that they 
were acting on principle. Pilferers were punished; and 
one ragged incendiary, to show his disinterestedness, threw 
into the burning pile a valuable piece of silver plate and a 
large sum of money in gold, which he swore should not “ go 
in payment of masses.” Flames were speedily vomited from 
every window; and, as no attempt was or could be made to 
arrest their progress, long before morning nothing of the 
stately structure remained but the bare and blackened skeleton 
of the walls.* 

Lord Mansfield and the public sustained a heavy loss on 
this occasion. His library contained the collection of books 
he had been making from the time he was a boy at Perth 
school, many of them the cherished memorials of early friend- 
ship, — others rendered invaluable by remarks in the margin, 
in the handwriting of Pope or Bolingbroke, or some other 
of the illustrious deceased wits and statesmen with whom 
he had been familiar. Along with them perished the let- 
ters between himself, his family, and his friends, which he 
had been preserving for half a century as materials for Me- 
moirs of his times. It is likewise believed that he had 

* Welsby, p. 432. The house of Lord Chancellor Thurlow, in Ormond 
Street, was likewise threatened, but escaped. According to a story circulated 
at the time, and often repeated since, it was saved by his manceuvre of marching 
and counter-marching a sergeant’s guard, so as to make the mob believe that he 
was defended by a great army. Holliday concludes his narrative of Lord 
Mansfield’s disaster by observing — “ In this instance we can only lament that 
so great a lawyer and statesman was not, in this hour of imminent danger, so 
great a general as the then Lord Chancellor”—(p. 411.). But Thurlow was not 
by any means equally unpopular; for, though indifferent about religion, and 


despising the restraints of morality, he had always shown himself a very zealous 
friend of the Established Church and a determined enemy of Dissenters. 


LIFE OF LORD MANSFIELD. 525 


amused his leisure by writing, for posthumous publication, CHAP. 
several treatises on juridical subjects, and historical essays, ics 
filling up the outline of the admirable sketch he had given a.. 1780. 
in his “ Letters of Advice to the Duke of Portland.” All 
his MSS. had remained in his town house, and they were 
all consumed through the reckless fury of illiterate wretches, 
who were incapable of forming a notion of the irreparable 
mischief they were committing. 

The public sympathy was testified by many metrical effu- 
sions, which appeared in the newspapers. Of these, the most 
pleasing were the following stanzas by Cowper : — 


« So, then — the Vandals of our isle, Stanzas by 
Sworn foes to sense and law, Cowper on 
Have burnt to dust a nobler pile the burning 
Than ever Roman saw ! of Lord 
; ' Mansfield’s 
« And Murray sighs o’er Pope and Swift, library. 


And many a treasure more, 
The well-judg’d purchase and the gift, 
That grac’d his letter’d store. 


“ Their pages mangled, burnt, and torn, 
Their loss was his alone ;- 
But ages yet to come shall mourn 
The burning of his own,” 


* * * * * 


« When wit and genius meet their doom 
Tn all-devouring flame, 
They tell us of the fate of Rome, 
And bid us fear the same. 


« O’er Murray’s loss the Muses wept : 
They felt the rude alarm ; 
Yet bless’d the guardian care that kept 
His sacred head from harm. 


“ There memory, like the bee that’s fed 
From Flora’s balmy store, 
The quintessence of all he read 
Had treasured up before. 


«“ The lawless herd, with fury blind, 
Have done him cruel wrong : 
The flowers are gone; but still we find 
The honey on his tongue.” 

The venerable Chief Justice must have been most of all 
gratified by the filial solicitude of the members of his own 
profession. For a few days after the fire he did not appear 
in court. ‘The reverential silence (says Lord Glenbervie, June 14. 


then the reporter of his decisions) which was observed when 


526 


CHAP. 
XXXVIIL. 


A.D. 1780. 


The riots 
are at last 
quelled, 


June 8, 


REIGN OF GEORGE III. 


his lordship resumed his place on the bench, was expressive 
of sentiments of condolence and respect more affecting than 
the most eloquent address the occasion could have sug- 
gested.” * 

It may be proper here to mention, that while many others, 
who had been his fellow-sufferers, brought actions against the 
hundred for an indemnity, he waved this remedy, thinking 
his real loss to be inappreciable, and, on account of his great 
wealth, not wishing to throw any part of the pecuniary 
damage on shoulders less able to bear it. In answer to an 
application from the solicitor to the Treasury, in consequence 
of a vote of the House of Commons for an estimate of the 
value of his property which had been destroyed, he said, — 

“ Besides what is irreparable, my pecuniary loss is great. I 
apprehended no danger, and therefore took no precaution. But, how 
great soever that loss may be, I think it does not become me to 
claim or expect reparation from the state. I have made up my 
mind to my misfortune as I ought; with this consolation, that it 
came from those whose object manifestly was general confusion 
and destruction at home, in addition to a dangerous and complicated 
war abroad. If I should lay before you any account or computa- 
tion of the pecuniary damage I have sustained, it might seem a 
claim or expectation of being indemnified. Therefore you will 
have no further trouble on this subject from, &c. 

: “« MANSFIELD.” 

One good effect produced by the conflagration in Blooms- 
bury Square was, that it roused the Government from le- 
thargy. A council was called, at which the King presided in 
person and showed more energy than any of his ministers. 
Having obtained the opinion of Mr. Wedderburn, the At- 
torney General, that by the law of England the force ne- 
cessary to prevent the perpetration of crimes may be lawfully 
used, and that all the subjects of the realm, whether soldiers 
or civilians, may be lawfully employed in restoring and pre- 
serving the public peace, he gave orders to the military to 
act with the requisite vigour ; and several regiments of militia, 
as well as of the line, having arrived from distant parts of the 
kingdom, a few vollies, well directed, speedily restored the © 
metropolis to a state of the most perfect tranquillity. 

* Doug. 446. 


LIFE OF LORD MANSFIELD. 


When the two Houses again met, according to the ad- 
journment, the King said to them, in a speech from the 
throne, — 

“ The outrages committed by bands of lawless and desperate 
men, in various parts of this metropolis, broke forth with such 
violence into acts of felony and treason, and had so far overborne 
all civil authority, and threatened so directly the immediate sub- 
version of all legal power, the destruction of all property, and the 
confusion of every order in the state, that I found myself obliged 
by every tie of duty and affection to my people to suppress, in 
every part, those rebellious insurrections, and to provide for the 
public safety by the most effectual and immediate application of 
the force intrusted to me by Parliament.” 

The address, approving of what his Majesty had done, 
meeting with some opposition from the Duke of Manchester 
and other peers, who intimated an opinion that the employ- 
ment of the military to quell riots by firing on the people 
could only be justified, if at all, by martial law proclaimed 
under a special exercise of the royal prerogative, Lord 
Mansfield rose, while every eye was fixed upon him, and all 
held their breath, eager to catch every accent that fell from 
his lips. Considering his age, his experience, his reputation 
as an oracle of the common law, the perils to which he had 
recently been exposed, and the loss which he had suffered, we 
need not wonder at the interest which he now excited. 

** My Lords,” said he, “I wish it had not fallen to my lot to 
address you on this occasion, but I must not shrink from a task 
which duty imposes upon me. That the law may be obeyed, it 
must be known. My Lords, the noble Duke who last addressed 
the House is utterly mistaken in supposing that the employment 
of the military to suppress the late riots proceeded from any ex- 
traordinary exertion of the royal prerogative, and in his inference 
that we were living under martial law. I hold that his Majesty, 
in the orders he issued by the advice of his ministers, acted per- 
fectly and strictly according to the common law of the land and 
the principles of the constitution ; and I will give you my reasons 
within as short a compass as possible. I have not consulted books ; 
indeed, I have no books to consult. [Deep sensation.] But, as 
well as my memory serves me, let us see, my Lords, how the facts 
and the law stand, and reflect a light upon each other. The late 
riots were formed upon a systematic plan to usurp the government 


527 


CHAP. 
XXXVIII. 


A.D. 1780. 
June 19. 


Lord 
Mansfield’s 
speech vin- 
dicating 
the employ- 
ment of the 
military for 
that pur- 
pose. 


528 


CHAP. 
XXXVIII. 





A.D. 1780. 


REIGN OF GEORGE III. 


of the country ; the rioters levied war against the King in his 
realm, and committed overt acts of high treason. ‘Insurrections 
for a general purpose —as, to redress grievances, real or pretended, 
— amount to a levying of war against the King, though they have 
no design against his person, because they invade his prerogative, 
and the power of parliament, which he represents. The insurgents 
avowedly sought by force to compel the legislature to repeal a 
statute; they violently assaulted the two Houses of Parliament 
while engaged in legislative deliberation; and, when left to them- 
selves by the adjournment of the two Houses and the inaction of 
the executive government, which it is not my part to censure 
[sensation |, — without formally promulgating a new constitution, 
they for some days usurped supreme authority, and acted as masters 
of this metropolis. Besides high treason, my Lords, they were 
guilty of many acts of felony, by burning private houses, and 
stealing as well as destroying private property. Here, then, my 
Lords, we shall find the true ground upon which his Majesty (by 
the advice of his ministers, I presume) proceeded. I do not pre- 
tend to speak from any previous knowledge or communication, for 
I never was present at any consultation upon the subject, or 
summoned to attend, or asked my opinion, or heard of the reasons 
which induced the Government to remain passive so long and to 
act at last. [Wonder expressed by the bystanders, and scornful 
glances cast upon the Treasury bench.] But, my Lords, I presume 
it is known to his Majesty’s confidential servants, that every indi- 
vidual, in his private capacity, may lawfully interfere to suppress 
a riot, much more to prevent acts of felony, treason, and rebellion. 
Not only is he authorised to interfere for such a purpose, but it is 
his duty to do so; and, if called upon by a magistrate, he is 
punishable in case of refusal. What any single individual may 
lawfully do for the prevention of crime and preservation of the 
public peace, may be done by any number assembled to perform 
their duty as good citizens. It is the peculiar business of all 
constables to apprehend rioters, to endeavour to disperse all un- 
lawful assemblies, and, in case of resistance, to attack, wound, 
nay, kill those who continue to resist ; — taking care not to commit 
unnecessary violence, or to abuse the power legally vested in them. 
Every one is justified in doing what is necessary for the faithful 
discharge of the duties annexed to his office, although he is doubly 
culpable if he wantonly commits an illegal act under the colour 
or pretext of law. The persons who assisted in the suppression 
of these tumults are to be considered mere private individuals, 


LIFE OF LORD MANSFIELD. 


acting as duty required. My Lords, we have not been living 
under martial law, but under that law which it has long been my 
sacred function to administer. For any violation of that law, the 
offenders are amenable to our ordinary courts of justice, and may 
be tried before a jury of their countrymen. Supposing a soldier, 
or any other military person, who acted in the course of the late 
riots, had exceeded the powers with which he was invested, I 
have not a single doubt that he may be punished, not by a court- 
martial, but upon an indictment to be found by the grand inquest 
of the City of London or the County of Middlesex, and disposed 
of before the ermined judges sitting in Justice Hall at the Old 
Bailey. Consequently, the idea is false that we are living under 
a military government, or that, since the commencement of the 
riots, any part of the laws or of the constitution has been sus- 
pended or dispensed with. I believe that much mischief has arisen 
from a misconception of the Riot Act, which enacts that, after 
proclamation made that persons present at a riotous assembly shall 
depart to their homes, those who remain there above an hour 
afterwards shall be guilty of felony, and liable to suffer death. 
From this it has been imagined that the military cannot act, what- 
ever crimes may be committed in their sight, till an hour after 
such a proclamation has been made, or, as it is termed, ‘the Riot 
Act is read.’ But the Riot Act only introduces a new offence — 
remaining an hour after the proclamation — without qualifying 
any pre-existing law, or abridging the means which before existed 
for preventing or punishing crimes. 

* T am fully persuaded that none of your Lordships will think 
that the acts of violence lately directed against myself can influence 
my exposition of the law, or can alter my principles. Although 
it so happened that I never once spoke in this House in support 
of the obnoxious bill to mitigate Roman Catholic penalties, and, 
as far as I recollect, I was not present when it passed through 
any of its stages, I approved, and I approve, of its principle. My 
desire to disturb no man for conscience’ sake is pretty well known, 
and, I hope, will be had in remembrance. I have no leaning to 
Roman Catholics. Many of those who are supposed to have di- 
rected the late mobs are not ignorant of my general tolerating 
principles when the toleration of sectaries does not portend danger 
to the state. I have shown equal favour to dissenters from the 
established Church of all denominations; and, in particular, those 
called Methodists can bear witness that I have always reprobated 
attempts to molest them in the celebration of their religious 

VOL. II. M M 


CHAP. 
XXXVIHL 


A.D. 1780. 


530 


CHAP. 
XXXVII. 


A.D. 1780. 


REIGN OF GEORGE III. 


worship as unworthy of the apostolical protestantism which we 
profess ; the purity of whose doctrines, and not persecution, should 
be the only incentive to bring proselytes into her bosom. I was, 
and am, of the same opinion with respect to the Roman Catholics ; 
and, although I had no hand, directly or indirectly, in the law 
which has furnished a pretext for the late dangerous insurrections, 
I shall ever be of opinion that they, in common with the rest of 
his Majesty’s subjects, should be allowed every possible indulgence 
consistent with the safety of the empire. 

“‘ Upon the whole, my Lords, while I deeply lament the cause 
which rendered it indispensably necessary to call out the military, 
and to order them to act in the suppression of the late disturbances, 
Iam clearly of opinion that no steps have been taken for that 
purpose which were not strictly legal, as well as fully justifiable 
in point of policy. Certainly, the civil power, whether through 
native imbecility [a smile], through neglect, or the very for- 
midable force they would have had to contend with, were unequal 
to the task of putting an end to the insurrection. When the 
rabble had augmented their numbers by breaking open the prisons 
and setting the felons at liberty, they had become too formidable 
to be opposed only by the staff of a constable. If the military 
had not acted at last, none of your Lordships can hesitate to agree 
with me that the conflagrations would have spread over the whole 
capital ; and, in a few hours, it would have been a heap of rubbish. 
The King’s extraordinary prerogative to proclaim martial law 
(whatever that may be) is clearly out of the question. His Ma- 
jesty, and those who have advised him (I repeat it), have acted in 
strict conformity to the common law. The military have been 
called in—and very wisely called in—not as soldiers, but as 
citizens. No matter whether their coats be red or brown, they 
were employed, not to subvert, but to preserve, the laws and con- 
stitution which we all prize so highly.” 

Lord Mansfield sat down in the midst of a reverential 
silence more flattering to him than the loudest cheers, and 
the address was immediately carried nemine dissentiente.* 

Bishop Newton, who was present, says, ‘It was really 
wonderful, after such a shock as he had received, that he 
could so soon recollect himself, and so far summon up his 
faculties as to make one of the finest speeches ever heard in 
parliament, to justify the legality of the late proceedings on 


* 21 Parl, Hist. 688—698. 


LIFE OF LORD MANSFIELD. 


the part of the Government, to demonstrate that no royal 
prerogative had been exerted, no martial law had been ex- 
ercised, nothing had been done but what every man, civil or 
military, had a right to do in the like cases.” * 

Lord Mansfield was soon after placed in a very delicate 
situation, which required both caution and firmness; he had 
to preside in the Court of King’s Bench at the trial of Lord 
George Gordon, who stood charged with high treason. It 
was a high compliment to the known impartiality of English 
judges, that neither the prisoner himself, nor his counsel nor 
his friends, were at all alarmed at his fate being placed in the 
hands of one who had suffered so deeply from the conse- 
quences of the acts to be investigated, and who had already 
pronounced a strong opinion upon the character of those acts. 
During the whole proceeding, Lord Mansfield showed himself 
free from the slightest tinge of resentment or prejudice; but, 
at the same time, he made no parade of generosity of feeling. 

There could be no doubt that the acts of the insurgents, 
during the last days of the riots, did amount to high treason ; 
but the grand question was, how far the prisoner was to be 
considered privy to them,—for although he had headed the 
procession to present the petition, and had then been guilty 
of great intemperance of language by which the mob were 
excited to violence, he had afterwards attempted to control 
them, and had actually offered to assist the sheriffs in restoring 
tranquillity. 

Luckily for him, he was defended by an advocate who on 
this occasion first gave full proof of those wonderful powers 
which afterwards rendered his name so illustrious. It had 
been said that Lord Mansfield resembled Cicero in having had 
his house burnt down by the “modern Clodius.” Thus 
Erskine turned to the advantage of his client an incident 
which seemed so perilous : — 

“Can any man living believe that Lord George Gordon could 
possibly have excited the mob to destroy the house of that great 
and venerable magistrate, who has presided so long in this high 
tribunal that the oldest of us do not remember him with any other 
impression than the awful form and figure of justice, —a magis- 


* Bishop Newton’s Memoirs, 
MM 2 


531 


CHAP. 
XXXVIII. 


AID: Eijele 


Feb. 3. 
He pre- 
sides at the 
trial of 
Lord 
George 


Gordon, 


Erskine’s 
allusion to 
the burn- 
ing of Lord 
Mansfield’s 
house, 


532 


CHAP. 
XXXVUI. 


A:D. 1781. 


Lord 
Mansfield’s 
exposition 
of the law 
of high 
treason. 


Lord 
George 
Gordon is 
acquitted. 


REIGN OF GEORGE III. 


trate who had always been the friend of the Protestant Dissenters 
against the ill-timed jealousies of the Establishment, —his country- 
man too, — and, without adverting to the partiality, not unjustly, 
imputed to men of that country, a man of whom any country 
might be proud? No, gentlemen, it is not credible that a man of 
noble birth and liberal education (unless agitated by the most 
implacable personal resentment, which is not imputed to the 
prisoner) could possibly consent to this burning of the house of 
Lord Mansfield.” 

The Chief Justice again laid down the doctrine that an insur- 
rection to redress a general grievance, or to compel the repeal 
of a law, is.a levying of war and high treason, whether the 
grievance be real or imaginary, whether the law be good or 
bad; and he fairly left two questions to the jury: 1st, Did the 
insurgents intend by force to compel the repeal of the statute 
passed to mitigate the penalties to which Roman Catholics 
were subject ? —and 2dly, Did the evidence clearly prove that 
Lord George Gordon had participated in this intent by calling 
such an assemblage to present the petition of the Protestant 
Association, by meeting them in St. George’s Fields, by 
leading them to the House of Commons, by addressing them 
when they were in possession of the lobby, by wearing for 
two days the blue cockade, which was the badge of the in- 
surgents, or by any other part of his conduct? With perfect 
candour he likewise pointed out the circumstances favourable 
to the prisoner; and he advised the jury, if they thought the 
scale hung doubtful, to lean to the side of mercy. 

It is well known that Lord George Gordon was acquitted ; 
and certainly to have convicted him upon acts so indirectly 
tending to a levying of war, or compassing the King’s death, 
would have been establishing a very dangerous precedent of 
constructive treason.* 


* 21 St. Tr. 485—652. 


LIFE OF LORD MANSFIELD, 


CHAPTER XXXIX. 


CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE 
RESIGNED THE OFFICE OF CHIEF JUSTICE. 


Lorp MANSFIELD continued to perform his judicial duties with 
unabated energy, and with still increased respect; but hence- 
forth he acted a much less conspicuous part on the political 
stage. Lord Thurlow was jealous of his influence with the 
King; there had for some time been a coldness between him 
and the Ministry, and this was considerably aggravated by 
his civil sneers at their inaction during the late riots. To 
opposition he had an innate dislike, which stuck by him all 
his life; and he differed altogether from the Rockingham and 
Shelburne Whigs, who were now pressing on Parliament paci- 
fication with America and economical reform. Therefore, 
till Lord North’s resignation, he seldom attended in the 
House of Lords; and he only spoke on such dry subjects 
as the government of the Isle of Man*, the expediency 
of a bill for the discharge of insolvent debtors t, whether go- 
vernment contractors should be allowed to sit in the House of 
Commons {, and whether the corrupt electors of the borough 
of Cricklade ought to be disfranchised?§ In the debates 
arising out of the surrender of Lord Cornwallis to General 
Washington, the commencement of hostilities with France 
and Spain, and the armed neutrality of the Northern Powers, 
he remained silent. When present in the House, and sitting 
solitary on a back bench, he showed great dejection of coun- 
tenance, which was supposed to arise not alone from public 
disasters, but partly from the consciousness of his own loss of 
consequence, and the recollection of the brilliant though 
anxious nights when, matched against the elder Pitt, he had 
commanded the applause of listening senates. 


* 22 Parl. Hist. 561. 
¢ Ibid. 1364. 


Ib. 628. 
§ Ib. 1383—1388. 


uM 3 


533 


CHAP: 
XXXIX. 


A.D. 1781 
—1783. 
Lord 
Mansfield 
takes no 
part in 
polities 
during the 
administra- 
tions of 
Lord 
Rocking- 
ham and 
Lord Shel- 
burne. 


534 


CHAP. 


XX XIX. 


A.D. 1782, 
1783. 


March, 
Gps 


Feb. 1783. 


Feb. 1783. 


He joins 
the coali- 
tion, 


REIGN OF GEORGE III. 


On the 1st of January, 1782, he received the following 
melancholy salutation from the Bishop of Bristol : — 

“ Give me leave, at the coming in of the new year, to address 
your Lordship with the old wish of multos et felices. Jam happy 
to hear from all friends so good an account of your health; and I 
rejoice in it for the sake of the public as well as your own, yours 
being a life of the greatest consequence, an ornament and blessing 
to your country. Mine is but labour and sorrow, and I have often 
occasion devoutly to wish ‘ Lord, now lettest thou thy servant de- 
part in peace. Never having been strong and healthy, it is no 
wonder, that, entering into the seventy-ninth year of my age, I 
bow under a load of growing evils.” 

Lord Mansfield returned by the messenger a melancholy 
answer : — 

“ A thousand thanks to you for your most friendly letter. We 
two are almost left alone. Thank God, I go down the hill with- 
out pain except for the public ; and, if the Brest fleet and convoy 
are dispersed and driven back, this year opens propitiously. Lady 
Mansfield, blessed be God, has had a miraculous recovery from a 
very sudden and violent illness. Prudence on her account has 
kept me hitherto in town these holidays. I hope to be able soon 
to have the pleasure of seeing you, and thanking you personally 
for your kind remembrance of 

* Your most affectionate, &c. 
“* MANSFIELD.” 

During the successive short administrations of Lord Rock- 
ingham and Lord Shelburne he still maintained his neutrality, 
refusing even to offer any opinion upon the preliminaries of 
peace by which American independence was acknowledged 
and important concessions were made to the House of 
Bourbon. Thurlow remained Chancellor, though often ca- 
priciously opposing his colleagues, and his course was so 
erratic that there was great difficulty either in going along 
with him or abandoning him. 

On the formation of the Coalition Ministry, Lord Mans- 
field was induced by his old friend Lord North to lend 
it his countenance, notwithstanding his friendship ” for 
George III. He declined to re-enter the Cabinet, but, the 
great seal being put into commission, he agreed again to act 
as Speaker of the House of Lords. During the stormy 


LIFE OF LORD MANSFIELD. 


period which followed, he occasionally left the woolsack and 
said a few words when he thought he could do a good turn 
to the Government, while Lord Loughborough stood forth 
as its regular champion. There being a furious opposition 
stirred up against the Receipt Tax, now devised for the first 
time by Mr. Fox and Lord John Cavendish *, various peers 
came down to the House loaded with petitions against it ; but 
Lord Mansfield not only asserted the rule that no petition 
against the imposition of a tax can be received, but took 
occasion to point out the necessity for contributing to the 
necessities of the public service, and the great danger to be 
apprehended from the prevalence of delusion and faction on 
such a subject. f 

While the tempest raged in the Lower House the Upper 
was comparatively tranquil, and Lord Mansfield had little 
else to do beyond putting the question nightly upon the 
adjournment. But at last the famous India Bill was delivered 
at the bar by Mr. Fox, attended by a numerous band of 
coalitionists. From the growing unpopularity of the cabal 
against the just rights of the Crown between those who had 
recently threatened to bring each other to the block for their 
political misdeeds, a resolution had been taken, with the con- 
currence of the King, to reject the measure and to get rid of 
its framers at the same time; and all men saw that a death- 
struggle was at hand. The opposition to the bill was mani- 
fested with violence before it had been read a first time ; 
but the policy of its opponents was—not to come to a decision 
upon it till it had been further damaged in public opinion 
and the cry of “ No Coalition” should have gathered still 
more strength. Therefore, after much abuse, it was allowed 
to be read a first and second time, and the petitioners against 
it were then to be heard with their evidence at the bar. 


* The following epigram was told me many years ago by an old lawyer, who 
pretended that he had made it on this occasion, to celebrate Fox’s extravagance 
and poverty. I know not whether it has before been in print :— 

“‘ Said Charles, ‘ Let us a tax devise 
That will not fall on me;’ 
‘ Then, tax recrrrrs,’ Lord John replies, 
* For those you never see.’” 


+ 23 Parl, Hist. 1029. 


MM 4 





Fox’s 
India Bill 
in the 
House of 
Lords, 


536 


CHAP. 
XXXIX. 


A.D 1783, 


Dee. 15. 


REIGN OF GEORGE III. 


This policy proving successful, many useless witnesses were 
examined, and their examinations were most tediously pro- 
tracted. Lord Mansfield presided on the woolsack, and often 
tried, by interposing, to check irrelevancy and repetition; 
and he soon found that there was a decided majority of the 
Peers ready to vote for whatever Lord Thurlow, now the 
avowed leader of the Opposition, might propose. 

At last Lord Loughborough, after a bitter invective against 
the counsel of the East India Company for the manner in 
which, “ in obedience to their instructions,” they had been 
wasting the time of the House, rather imprudently moved, 
* that they be restrained from going into proofs of the Car- 
natic haying been evacuated, and peace being established 
there, as it was a fact universally admitted.” 

Thurlow saw the advantage his party would have in taking 
a division on this question, and made a violent speech against 
those who wished to stifle inquiry and were resolved at once 
to invade the rights of private property and the prerogatives 
of the Crown. 

Lord Mansfield left the woolsack, and in a calm, judicial, 
mediating tone, expressed a hope that the House would come 
to some understanding as to the manner in which the inquiry 
should be conducted, without putting the question which had 
been moved : — . 

“ He was inclined,” he said, “to think that a great deal of the 
evidence which had already been produced might have been 
spared; but where a bill was depending which materially affected 
the property of individuals, it was usual for the House to allow 
them every indulgence possible, and to use as much delicacy in 
passing such a bill as the nature of the case would admit. ‘The 
measure, though perhaps necessary and expedient for the public 
good, certainly was severe upon the petitioners, by depriving them 
of the management of their own concerns; and for this reason it 
was that their Lordships hitherto had shown such exemplary 
patience while they might have complained that their time was 
wasted. It was impossible to say that the present state of the 
Carnatic might not be material for their consideration, and various 
opinions might be entertained as to the mode in which that pro- 
vince had been and ought to be governed. He owned that the 
bill was of the highest importance, and that their Lordships 


LIFE OF LORD MANSFIELD. 


should come to a decision upon it with all convenient despatch ; 
but still he trusted that his noble and learned friend would waive 
his motion, and that the House would permit the counsel to 
proceed.” Lord Loughborough: ‘‘ My Lords, I have no difficulty 
in complying with a request coming from a quarter which I so 
much respect. ‘Therefore, with the permission of your Lordships, 
I withdraw my motion.” Lord Mansfield: “Call in the counsel 
for the petitioners. Gentlemen, you will proceed with your 
evidence, the House confiding in your professional honour that 
you will only offer that which you believe to be material for our 
information.” * 

When it was judged that the public mind was in a fit state 
for receiving the dismissal of the Ministers, who were still 
supported by a large majority of the House of Commons, the 
evidence was closed, the bill was rejected, and Mr. Pitt was 
declared Prime Minister. 

The great seal being taken out of commission and restored 
to Lord Thurlow, Lord Mansfield surrendered the woolsack 
to him, having occupied it on this occasion nearly a twelve- 
month. 

He had but an indifferent opinion of the young gentleman 
who, at the age of twenty-four, was now trusted with supreme 
power, notwithstanding the accounts he received of his extra- 
ordinary eloquence. The prejudice he entertained against 
the name of Pitt was greatly strengthened by the part which 
the youthful orator had taken in denouncing ministerial cor- 
ruption and in advocating parliamentary reform. On the 
other side, there were rankling recollections of the long hos- 
tility which had prevailed during the life of the sire, and the 
indifference manifested at his death, which the son himself 
had witnessed. 

Lord Mansfield, like all the world, believed at first that 
the new administration must be short-lived, and he was 
willing to contribute his aid to overthrow it. When a reso- 
lution was moved in the House of Lords against the conduct 
of the majority of the House of Commons in obstructing the 
exercise of the King’s right to choose his ministers, Lord 
Mansfield opposed it in a speech which is memorable as the 
last he ever delivered in parliament :— 

* 24 Parl. Hist. 146—150. 


537 


CHAP. 
XX XIX. 


A.D. 1783, 


Mr. Pitt 
Prime 
Minister. 


Dec, 23. 


Feb. 4. 
1784. 


538 


CHAP. 
XXXIX. 


A.p. 1784. 


Lord 
Mansfield’s 
last speech 
in parlia- 
ment, 


REIGN OF GEORGE III. 


“Every man,” said he, “who is called upon to consider a great 
measure ought to begin at the end; in other words, before he 
adopts it he ought to examine the consequences that will probably 
flow from it. Thus a Roman pretor, whenever a new proposition 
was made to him, used always to ask cui bono ?— and I may with 
propriety add cui malo? for the evils to ensue are to be regarded 
as well as the benefits expected from it. Looking at the resolution 
before us, I behold it with trembling. I have never risen to 
speak to a question with such anxiety in my life. I scarcely know 
how to express myself. It had pleased his Majesty to change his 
ministers under circumstances which caused violent conflicts in 
parliament. Now it is agreed on all hands that an abatement of 
these conflicts is desirable; that in the depressed state of the na- 
tion union is the one thing needful. I hope God Almighty in his 
goodness will instil concord into the hearts of the inhabitants of 
this ill-fated country, and thus effect our salvation from almost 
certain perdition. Will the present resolution, if passed, tend to 
such a consummation? We are told that there is no wish to 
disturb the harmony between the two Houses. Then why pass a 
resolution which must produce a quarrel between them —to the 
entire obstruction of public business? What is the remedy? A 
dissolution of parliament ! But a dissolution of parliament in the 
present situation of affairs is utterly impracticable. We have no 
time to spare ; we are even now at the last hour. The ship sinks 
while we are deliberating on what course we should steer. I 
speak merely from a sense of the extreme peril to which we are 
exposed, and not from any view to this or that administration. 
There are in the present Administration able and respectable men, 
but I wish to God that it had more strength. At this moment 
the strongest administration is the best, and any administration 
competent to deliver us from the appalling dangers with which we 
are environed shall have my support. The proposed resolution 
declares an abstract proposition, which no one can deny, “that 
neither House of Parliament has power to suspend or alter the 
law of the land.” What necessity can there be for such a de- 
claration ? and what good can arise from it? If the Commons 
have made any attempt of this nature, their act is a nullity, and 
no one need respect it. But do you not needlessly insult them by 
telling them that they have done so ; and may it not be dreaded 
that, following your example, and forgetting the public welfare, 
they may seek blindly to gratify the factious inclination for 
mischief which you impute to them? Before you render a dis- 


LIFE OF LORD MANSFIELD. 


solution of parliament indispensable, think for a moment of the 
evils which must ensue. Are you prepared to disband the army, 
to lay up the navy, to paralyse all the operations of government, 
and to expose yourselves to the machinations of rival states which 
have so recently conspired your destruction? I own I tremble 
at the precipice on which we stand. If any persons have been 
guilty of a crime against the constitution, let them be impeached 
and legally tried. No injury can arise from the exertion of con- 
stitutional means of enforcing the law ; but do not wantonly pass 
a resolution which can neither prevent nor punish crime, which 
can only be meant as an insult to the representatives of the people, 
and which may prove the signal for universal confusion in the 
country.” 

The resolution, however, was carried by a majority of 47; 
and was followed by an address to his Majesty, engaging to 
support him in the exercise of his prerogative of choosing his 
ministers.* Upon this occasion the House of Lords was the 
rallying point for public opinion, and an instance was afforded 
of the necessity for two deliberative assemblies in framing a 
free constitution. 

In the course of the ensuing month a dissolution of par- 
liament did take place, when the coalitionists were scattered 
to the winds. A House of Commons was returned which 
made Mr. Pitt the most powerful minister who held office 
during the long reign of George III., and till the breaking 
out of the French Revolution he governed the country with 
consummate prudence and signal success. 

Lord Mansfield’s political career must here be considered 
as closed. After the meeting of the new parliament he took 
his seat in the House of Lords, and occasionally attended to 
the judicial business which came before it, but he never again 
opened his mouth in debate. I hope he was pleased to find 
that his predictions respecting the ruin of the empire were 
not verified, and that, as his bodily vigour declined, he was 
not distracted by party squabbles from the discharge of his 
forensic duties. 

He continued to preside in the Court of King’s Bench 
several years longer, as much admired as ever for the intel- 


* 24 Parl. Hist. 494526. 


539 


CHAP. 
XX XIX. 


A.D. 1784, 


March, 


Close of 
Lord 
Mansfield’s 
political 
career. 


540 


CHAT. 
XXXIX, 


A.D. 1784. 


Dean of 
St. Asaph’s 
Case : 
rights of 
juries 

in cases of 
libel, 


REIGN OF GEORGE III. 


lectual qualities he displayed, and, if possible, more reverenced 
from the venerable age he had attained. 

The great question was revived respecting the rights of 
juries on trials for libel. In the famous case of the DEAN OF 
St. Asapu, who was prosecuted for publishing a very harm- 
less dialogue written by Sir William Jones, Mr. Justice 
Buller having told the jury that they were not entitled to 
form any opinion upon the character of the paper charged as 
libellous, Erskine, his counsel, moved for a new trial, on 
the ground of misdirection, and, in support of his motion, 
delivered the finest juridical argument to be found in 
the annals of Westminster Hall. However, as he himself 
afterwards confessed, this effort was without any hope of 
success, and was only intended to draw the attention of the 
public to the subject, with a view to obtain redress by legis- 
lation.* Lord Mansfield thus delivered judgment : — 


“The objection so confidently relied upon might have been 
made upon every trial for a libel since the Revolution, now near 
one hundred years ago. In every subsequent reign there have 
been many such trials, arising out of prosecutions both of a private 
and public nature; and several of these have been defended with 
all the acrimony of party animosity, and a spirit ready to admit 
nothing and to contest everything. During all this time, as far as 
can be traced, the direction of every judge has been substantially 
the same as that of my brother Buller; and, till the reign of 
George III., no complaint was made of it by a motion to the 
Court. The counsel for the Crown, to remove the prejudices of 
a jury and to satisfy the bystanders, have expatiated upon the 
enormity of the libels; judges, with the same view, have some- 
times done the same thing: both have done it wisely with another 
view — to obviate captivating harangues tending to show that the 
jury can and ought to find that the paper is no libel. It is difficult 
to cite cases; the trials are not printed, and nobody takes notes of 
a direction which is not disputed. We must in all cases of tradi- 
tion trace backwards, and presume from usage which is remem- 
bered that the precedent usage was the same. ‘The King v. Clarke 
was tried before Lord Raymond, and there he expressly lays it 
down ‘the fact of printing and publishing only is in issue.’ The 
CRAFTSMAN was a celebrated party paper, written, in opposition to 


* Lives of the Chancellors, vi. 463. n. 


LIFE OF LORD MANSFIELD. 


the ministry of Sir Robert Walpole, by many men of high rank 
and great talents. The Government at last would bear its licen- 
tiousness no longer, and the famous Haque letter was selected as a 
fit subject of prosecution.* Iwas presentat the trial. There was 
a great concourse of people, and many distinguished political cha- 
racters were present to countenance the defendant. Mr. Fazakerley 
and Mr. Bootle (afterwards Sir Thomas Bootle) were counsel for 
the defendant. They started every objection and laboured every 
point as if the fate of the empire had been at stake. When the 
Judge overruled them, he usually said, ‘If I am wrong, you know 
where to apply” The Judge was my Lord Raymond, who had 
been eminent at the bar in the reign of Queen Anne, had been 
Solicitor and Attorney General in the reign of George I., and was 
intimately connected with Sir Edward Northey, who had been 
engaged in many state trials before the Revolution. He must, 
therefore, have been well acquainted with the ancient practice. 
Yet, when he comes to sum up, he says, ‘ There are three things 
for consideration :— 1. the fact of publication ; 2. the meaning of 
particular words (these two are for the jury) ; 3. the question of 
law or criminality, and that is upon the record for the Court.’ 
Mr. Fazakerley and Mr. Bootle were, as we all know, able lawyers, 
and were allied in party to the writers of the Craftsman. Yet, 
after a verdict of Guilty, they never complained to the Court, and 
it never entered their heads that the direction was not according to 
law. I recollect one case afterwards in which, to the great mor- 
tification of Sir Philip Yorke, then Attorney General, the Crafts- 
man was acquitted, and I recollect it from a famous witty and in- 
genious ballad that was composed on the occasion by Mr. Pulteney. 
Though it be a ballad, I will cite a stanza from it to show you the 
opinion upon this subject. of the able men in opposition, .and the 
leaders of the popular party, in those days. They had not an idea 
that the jury had a right to determine upon a question of law, and 
they rested the verdict on another and better ground : — 
‘For Sir Philip well knows 
That his innuendoes 
Will serve him no longer 
In verse or in prose ; 
For twelve honest men have decided the cause, 
Who are judges of fact, though not judges of laws.’ 

“ Here you have the admission of a whole party that the jury 

had no power beyond determining on the ‘innwendoes, or the 


* Rex v. Francklyn, 17 St. Tr. 625., a.p. 1731. 


541 


CHAP. 
XXXIX, 


A.D. 1784. 


REIGN OF GEORGE III. 


meaning ascribed by the information to particular words; and they 
never made a pretence of any other power, except when talking 
to the jury themselves.” After stating what his own practice had 
been since he became Chief Justice, he continued: ‘‘ The consti- 
tution trusts that, under the direction of a judge, the jury will not 
usurp a jurisdiction which is not in their province. ‘They do not 
know, and are not presumed to know, the law. They do not under- 
stand the language in which it is conceived, or the meaning of the 
terms. They have no rule to go by but their affections and wishes. 
It is said that if a man gives a right sentence upon hearing one side 
only, he is a wicked judge, because he is right by chance only, and 
has neglected taking the proper method to be informed *; so the 
jury who usurp the judicature of law, though they happen to be 
right, are themselves wrong because they are right by chance only, 
and have not taken the constitutional way of deciding the ques- 
tion. It is the duty of the judge to tell the jury how to do right 
though they have it 2” thetr power to do wrong, which is a matter 
entirely between God and their own consciences. ‘To be free is to 
live under a government by law. The liberty of the press con- 
sists in printing without any previous licence, subject to the legal 
consequences. ‘The licentiousness of the press is Pandora’s box, 
the source of every evil. Miserable is the condition of individuals, 
dangerous is the condition of the state, if there is no certain law; 
or, which is the same thing, no certain administration of law, by 
which individuals may be protected, and the state made secure, 
Jealousy of leaving the law to the Court, as in other cases, so in 
the case of libels, is now in the present state of things puerile 
rant and declamation. The judges are totally independent of the 
ministers that may happen to be in power, and of the King 
himself, ‘The temptation to be dreaded is rather the popularity of 
the day. But I agree with the observation cited by one of the 
counsel for the prosecution from Mr. Justice Foster, ‘that a 
popular judge is an odious and pernicious character.’ The judg- 
ment of the Court is not final, and, in the last resort, it may be 
reviewed in the House of Lords. In opposition to this, what is 
contended for ? that the law shall be in every particular case what 
any twelve men who shall happen to be the jury shall be inclined 
to think,—liable to no review and subject to no control,—under all 
the prejudices of the prevailing popular cry, and under all the 
bias of interest in this metropolis, where thousands are concerned 


& 
* Qui statuit rectum, parte inaudita altera, 
Licet equum statuerit, haud equus est.” 


LIFE OF LORD MANSFIELD. 


more or less in the manufacture of pamphlets, newspapers, and 
paragraphs. Under such an administration of law no man could 
tell, no counsel could advise, whether a paper is or is not punish- 
able. Iam glad that Iam not bound to subscribe to such an 
absurdity, such a solecism in politics. Agreeable to the uniform 
judicial practice since the Revolution, warranted by the funda- 
mental principles of the constitution, according to the maxims on 
which trial by jury is constituted, upon reason and fitness as well 
as authority, we are all of opinion that the direction at the trial 
was proper, and that this rule must be discharged.” * 

Upon a question so important in our constitutional history 
this exposition of the sentiments of Lord Mansfield must 
ever be interesting, although it be chargeable with some inac- 
curacy of statement, as well as fallaciousness of reasoning ; and 

he lived to see the doctrine which he considers so clearly and 
satisfactorily settled upset by a declaratory act of parliament. 
He was quite wrong in his recollection of Pulteney’s ballad on 
the acquittal of the Craftsman, which runs thus :— 


“ For twelve honest men have determined the cause, 
WuHo ARE JUDGES ALIKE OF THE FACTS AND THE LAws.” T 


Although Lord Raymond and subsequent judges had ruled 
in the manner represented, the practice could not be distinctly 
carried farther back than his time; and, instead of being ac- 
quiesced in, the battle was renewed on every state prosecution 
for a libel. Lord Camden had often solemnly protested 
against Lord Mansfield’s doctrine, and in the time of JuNIUS 
it had been reprobated in both Houses of Parliament. Indeed, 
it rests upon the transparent fallacy, that whether a paper 
amounts to a libel or not, is invariably a pure question of 
law. But all the judges supported Lord Mansfield’s doctrine 
when consulted in the House of Lords on the introduction of 
Fox’s Libel Bill, and there can be no doubt of the sincerity 
and honesty with which he laid it down and adhered to it. 
Erskine afterwards, in the defence of Paine, intimated how 
clearly the law was then supposed to be settled against him: 
— “J ventured to maintain this very right of a jury over the 
question of libel, before a noble and reverend magistrate of 

* 91 St. Tr. 847—1046. 


+ See Lives of the Chancellors, vol. v, pp. 25. 103, 136. 141. 176, 177. 206. 
287, 


543 


CHAP. 
XXXIX, 


A.D. 1784, 


544 


CHAP. 


XXXIX. 


A.D. 1784. 


Progress 
of opinion 
respecting 
the law of 
libel, 


REIGN OF GEORGE III. 


the most exalted understanding and of the most uncorrupted 
integrity. He treated me, not with contempt indeed, for of 
that his nature was incapable, but he put me-aside with in- 
dulgence, as you do a child when it is lisping its prattle out 
of season.” When the Libel Bill was receiving its final 
triumph in the House of Lords, Lord Camden beautifully 
alluded to the great man then on the verge of the tomb, 
whose doctrine was now for ever to be overthrown: ‘ Though 
so often opposed to him, I ever honoured his learning and his 
genius; and, if he could be present, he would bear witness 
that personal rancour or animosity never mixed with our 
controversies.” * 

No one born in the reign of Queen Anne ought to be se- 
verely blamed for entertaining apprehensions for the safety 
of the state from permitting juries to determine what publi- 
cations are innocent or criminal. We should recollect that 
Lord Somers and the leaders of the Revolution of 1688 
would not venture for some years to allow printing without 
a previous licence, and that, in the opinion of many of the 
most enlightened men in the next generation, a licenser could 
only be dispensed with upon the condition that the sentence 
upon writings after they were published should be pronounced 
by permanent functionaries whom the Crown should select 
for having a sufficient horror of every thing approaching to 
sedition. It was not till after a struggle of half a century, 
and under a minister then highly liberal (although he after- 
wards tried to hang a few of his brother reformers who con- 
tinued steady in the cause), that the bill passed declaring 
that, on a trial for libel, the jury, in giving their verdict, 
should have a right to take into consideration the character 
and tendency of the paper alleged to be libellous. Still the 
truth of the facts stated in the publication complained of 
could not be inquired into; for half a century longer the 
maxim prevailed, “the greater the truth the greater the 


* 99 Parl, Hist. 1404—1534. 

+ Much to the credit of Mr. Pitt, he warmly supported Fox’s Libel Bill with 
the whole influence of Government against Lord Thurlow and the Tory law- 
yers, who eagerly opposed it. Yet, in little more than two years, the same Mr. 
Pitt tried to make an attempt to improve our representative system—an overt 
act of high treason. : 


LIFE OF LORD MANSFIELD. 


libel,” and it was only in the year 1845 that “Lord Camp- 
bell’s Libel Bill” passed, permitting the truth to be given in 
evidence, and referring it to the jury to decide whether the 
defendant was actuated by malice, or by a desire for the good of 
the community.* These successive alterations of the law are 
now admitted to have operated beneficially — not only being 
favourable to free discussion, but really tending to restrain 
the licentiousness of the press. Candour, however, requires 
the confession that they were attended with some hazard, and 
we must not confound excessive caution with bigotry or a 
love of arbitrary government. The great problem for free 
states now to consider is, how journalism is to be rendered 
consistent with public tranquillity and the stability of political 
institutions. A licenser can never more be endured; and 
against a journal which daily excites to insurrection and 
revolution, a prosecution of the proprietor or printer for a 
libel —to be tried before a jury after the lapse of several 
months— affords no adequate remedy. If the great capitals of 
Europe are to be constantly in “a state of siege,” we may 
be driven to regret the quiet old times when royal gazettes, 
announcing court appointments, were the only periodicals. 
There was one other interesting libel case before Lord 
Mansfield — which occurred shortly before his final retire- 
ment. ‘This was an action for damages, most laudably com- 
menced by Mr. Pitt, the Prime Minister, against the pro- 
prietor of the Morning HeraLp newspaper for several 
paragraphs which had appeared in successive numbers of that 
journal, accusing him of gambling in the Funds, and fraudu- 
lently availing himself of official information to make money 
on the Stock Exchange — witha statement that “his friends 
were deeply grieved by the discovery, but were trying to 
palliate his misconduct.” Erskine was counsel for the de- 
fendant, and, admitting that the paragraphs were without any 
foundation in truth, suggested that they had been inserted 
through inadvertence, —delivered a warm eulogium on the 
purity, disinterestedness, and stainless character of the illus- 
trious plaintiff,— dwelt upon the high estimation in which he 


* 8&9 Vict. c. 75. 
VOT. 11. NN 


545 


CHAP. 
XX XIX. 


Feb. 1786. 
Action by 
Mr. Pitt 
for a libel 
accusing 
him of gam- 
bling in 
the Funds, 


546 


CHAP. 
XXXIX, 


A.D. 1786. 


REIGN OF GEORGE III. 


was held by the public, — insisted that he could have suffered 
nothing from an absurd charge which nobody believed, — and 
therefore urged the jury to award him only nominal damages. 
— Lord Mansfield, forgetting, as might be expected, the 
hereditary enmity between himself and the plaintiff, thus 
summed up: — 


“Gentlemen of the Jury: You have had avery ingenious speech, 
but upon the false principle that a man of the fairest character 
may be traduced with the greatest impunity. From defamation 
the law implies damage without actual proof; it is the province of 
the jury in their discretion to assess it, and, in doing so, they are 
to take into consideration the character and situation of the plain- 
tiff, the malignity of the libel, and all the other circumstances 
which aggravate the intended wrong. Lord Sandwich proved no 
special damage from the libel upon him, yet the jury gave him 
20001. ; and Lady Salisbury, the other day, recovered 5001. before 
me for a libel, although she could not have proved that any one 
thought the worse of her for being so libelled, and no one ever 
supposed that the jury was too lavish, The Right Honourable 
Gentleman who brings this action deserves the thanks of the 
public for submitting such a foul attack upon his character to the 
cognisance of you his countrymen. I agree with Mr. Bearcroft 
[counsel for Mr. Pitt] that it is scandalous in a private individual, 
who is in possession of political information which will influence 
the value of the Funds, to make a speculative bargain on the Stock ~ 
Exchange with another man who is ignorant of it, for they do not 
deal on equal terms; but in a minister of state such conduct is 
every way infamous. Besides trying to cheat the individuals 
with whom he bargains, he exposes himself to a powerful tempta- 
tion, and gives himself an interest against his duty, which may 
prove the ruin of the nation. Suppose, on entering into a nego- 
tiation for peace, he buys largely for a future day, he has an in- 
ducement to submit to any terms, that peace may be concluded ; 
and the sum that he realises is as much a bribe as if he had re- 
ceived it from the enemy. The newspaper containing this charge 
is circulated all over the kingdom and all over Europe. How can 
the readers tell whether a story, told so circumstantially, may not 
be true in spite of the high reputation which the plaintiff has 
hitherto maintained? To be sure, many ministers have done the 
same; some have been known to do it, — some have been strongly 
suspected of doing it, while others have stood clear. The assessing 
of damages, gentlemen, is entirely with you; but I must beg you 


LIFE OF LORD MANSFIELD. 


to recollect that there is a very serious question before you, in 
which all the King’s subjects are concerned, — whether there shall 
be any protection to the reputations of honourable men, either in 
public or private life? God forbid I should ever subscribe to 
the doctrine that the fairer a man’s or woman’s character may be, 
they are the less entitled to reparation when they are defamed! ” 

The jury found a verdict for the plaintiff, with 2501. 
damages. * 

Lord Mansfield was now in his eighty-second year. Hi- 
therto he had hardly ever been a day absent from his court 
since his first appointment as Chief Justice, and, except when 
he was upon the circuit, he rarely went farther from London 
than his villa at Kenwood, where his great amusement was 
ornamental gardening. But he at last found that old age had 
not in his case altogether lost its power in weakening muscles 
and stiffening joints; and, in the hope of renovating his frame, 
he repaired to Tunbridge Wells, which had long been a 
fashionable watering-place. Here he was worshipped as an 
idol; and much bad verse, both English and Latin, was offered 
up to him. I shall give specimens, the most favourable which 
I can select : — 


INVOCATION £O THE NYMPH OF THE SPRING AT TUNBRIDGE WELLS, ON LORD 
MANSFIELD HAVING EXPRESSED AN INTENTION OF LEAVING THE PLACE. BY 
A LADY. 


“ Arise, fair Naiad! from thy well ; 
Arise, and tune thy vocal shell, 
Try ev'ry soft bewitching art, 
To charm the ear, and please the heart, 
Till Mansfield shall thy voice obey, 
And near thy spring consent to stay. 
Sweetly warble in his ear, 
© Health, and all her train are here ; 
Health, whose liberal hand bestows 
Nights of undisturb’d repose, 
Hours of social mirth and glee, 
Days of soft tranquillity.’” 


EPIGRAM ON THE OCTOGENARIAN LORD MANSFIELD, BY THE REV, MR. MADDAN, 


«“ Inter mortales vetus est vox veraque sexpe, 
Bis sunt infantes, qui senuere semel ; 
At te lustrantes juvenemque senemque fatemur 
Te semel infantem, bis nituisse virum,” 


The benefit he might have derived from this excursion was 
greatly impaired by an interview with his old friend Lord 


* Political Anecdotes, i. 360—366. 


NN 2 


547 


CHAP. 
XXXIX. 


A.D. 1786. 


Lord 
Mansfield’s 
visit to 
Tunbridge 
Wells. 


548 


CHAP. 


XX XIX. 


A.D. 1786. 


Interview 
between 
Lord 
Mansfield 
and Lord 
George 
Sackville, 


REIGN OF GEORGE III. 


George Sackville, now Lord Viscount Sackville, — about to 
suffer under a sterner sentence than that pronounced upon 
him after the battle of Minden. The scene is thus graphically 
described by Richard Cumberland : — 

‘¢ He wished to take his leave of the Earl of Mansfield, then at 
Tunbridge Wells: I signified this to the Earl, and accompanied 
him in his chaise to Stoneland. I was present at their interview. 
Lord Sackville just dismounted from his horse, came into the room 
where we had waited a very few minutes, and staggered as he 
advanced to reach his hand to his visitor. He drew his breath with 
palpitating quickness, and, if Iremember rightly, never rode again. 
There was a deathlike character in his countenance, that visibly 
affected and disturbed Lord Mansfield in a manner that I did not 
expect, for it had more of horror in it than a firm man ought to 
have shown, and less perhaps of other feelings than a friend, in- 
vited toa meeting of that nature, must have discovered had he not 
been frightened from his propriety. Lord Sackville addressed 
him in the following words: —‘ But, my good Lord, though I 
ought not to have imposed upon you the painful ceremony of pay- 
ing a last visit to a dying man, yet so great was my anxiety to 
return you my unfeigned thanks for all your goodness to me, all 
the kind protection you have shown me during my ‘unprosperous 
life, that I could not know you were so near me and not wish to 
assure you of the invariable respect I have entertained for your 
character, and now in the most serious manner to solicit your for- 
giveness if I have appeared in your eyes, at any moment of my 
life, unjust to your great merits, or forgetful of your many 
favours.’ Lord Mansfield made a reply perfectly becoming and 
highly satisfactory.” * 

It has been supposed that Lord Sackville’s object was by 
a dying declaration to remove from Lord Mansfield’s mind 
all suspicion of the truth of the story, then very generally 
circulated, that he was the author of the Letters of Junius. 
Whether such a suspicion had existed, or how far it was re- 
moved, I am unable to explain, for Lord Mansfield always 
observed a studied silence respecting the much agitated 
question of the authorship of these libels. He must have 
formed a shrewd conjecture as to the identity of his assailant, 





* Memoirs, vol. ii. p. 249, 250. Cumberland says he does not trust to 
memory — he transcribes. 


LIFE OF LORD MANSFIELD. 


— but, like his opinion on the Middlesex election, z# died with 
him. 

The shock he sustained on this occasion might be caused 
merely by seeing a younger man than himself, with whom 
he had long been familiar, stepping into the grave.* 

After drinking the waters some weeks his strength was a 
little recruited, but when Michaelmas Term arrived he found 
his bodily infirmities multiply upon him, and he was unable 
to take his seat on the bench, although his mental faculties 
retained all their freshness. His great object now was, that 
Mr. Justice Buller should be his successor, and he would have 
been willing immediately to resign in favour of one whom he 
‘so much valued. Mr. Pitt, being sounded upon the subject, 
would not listen to what he considered a job. When he 
himself was at the bar, and went the Western Circuit, he had 
seen Buller try a Quo Warranto cause, upon which depended 
the right to return members of parliament for a Cornish 
borough long considered the property of the learned Judge 
himself. Pitt, anxious at once to promote the pure adminis- 
tration of justice and to reward a political partisan, wished 
exceedingly to give the office to Sir Lloyd Kenyon, the 
‘Master of the Rolls, who was not only a very honest man and 
deep lawyer, but had been very useful to the Government in 
the Westminster election in 1784, when Mr. Fox was pre- 
vented from being returned for that city. As Lord Mansfield 
was baulked in his wishes, he continued to hold his office— no 


* Our Chief Justice seems then to have been affected very differently from 
what might have been expected from his own notion of human nature, as ex- 
pressed by him when a much younger man, if we may believe the following 
anecdote : —“ Lord Mansfield was in the habits of intimacy with Bishop Trevor, 
who being much indisposed, Lord Mansfield called to see him; and while he 
‘was in the room with the bishop’s secretary for a minute, the late Dr, Adding- 
ton, his physician, was brought in a chair by two able-bodied chairmen, who 
were proceeding to carry him up stairs, pale and wan, and much debilitated, to 
his patient. The bishop’s secretary, fearing that his lord would be low-spirited 
at such a scene, begged of Lord Mansfield to interpose and go up first. The 
-quickness of the reply could not fail to be treasured up. It was, ‘ By no 
means; let him go; you know nothing of human nature: the bishop will be 
put in good spirits on seeing any one in a worse condition than himself.’ Lord 
Mansfield was prophetic ; and, on Dr, Addington’s taking leave, the chairmen 
had no sooner quitted the room with the sick-fare than the bishop humorously 
said, ‘I fear the crows will soon have my excellent physician,’ But in this he 
was mistaken. Bishop Trevor died in a few weeks. Dr. Addington lived 
many years after he had been consigned to the crows by his princely patient the 
Bishop of Durham.” — See Holliday, 184. 

NN 3 


549 


CHAP, 
XXXIX. 


A.D. 1786. 


Lord 
Mansfield, 
unable to 
sit in court, 
retains his 
office, 


550 


CHAP: 
XXXIX. 


A.D. 1788, 


He resigns 
the office of 
Chief Jus- 
tice. 


REIGN OF GEORGE Iii. 


doubt being flattered by physicians into the hope that he 
might recover his vigour and resume his seat — but, I believe, 
principally influenced by the belief that Buller, having a full 
opportunity to display his learning and talents, would acquire 
such reputation that, by the public voice, the Government 
would be compelled to appoint him. Ashurst was the senior 
puisne judge, and nominally presided, but Buller took the de- 
cided lead, and for seven terms —extending over nearly two 
years — he acted the part of Lord Chief Justice. He gave 
considerable satisfaction by his quickness, his assiduity, and 
his thorough acquaintance with every branch of his profession*, 
but Mr. Pitt remained inflexible—saying “he could not forget 
the trial at Bodmin any more than the merits and services of 
Sir Lloyd.” He likewise threw out some doubts as to the 
propriety of a high judicial office being so long held by one 
disabled by age from discharging its duties, and the difficulty 
he should have to defend this affair if it should unfortunately 
be mooted in the House of Commons. 

On the 4th of June, 1788, Lord Mansfield sent in his 
resignation. A meeting was immediately called of the 
members of the King’s Bench bar, who not only reverenced 
his high judicial qualities, and were flattered by the splendour 
he had cast upon their order, but were warmly attached to him 
by the courtesy and kindness with which he had ever treated 
them.f Having delivered warm encomiums upon his character 
and conduct, they unanimously resolved that a valedictory 
address should be presented to him in the manner that, upon 
inquiry, should be found most agreeable to his feelings; and the 
manner of presenting it was left to the Hon. Thomas Erskine, 
who had for some years been their distinguished leader. 

After proper inquiry, he wrote the following letter, and 
despatched it by a messenger to Kenwood : — 





* Durnford and East’s Reports, vols. i. and ii., bear creditable testimony to 
his powers as a judge; and I make no doubt that he would have acquitted him- 
self very respectably as the successor of Lord Mansfield. To cover his mortifi- 
cation, on the appointment of Lord Kenyon, he soon left the Court of King’s 
Bench, and hid himself in the Common Pleas. 

+ It was thought better not to call a meeting of the whole Bar of England, 
for in that case Sir John Scott, the Attorney General, must have presided ; and 
he was well known to bear a grudge to Lord Mansfield, and was always disposed 
to vilipend him. 


LIFE OF LORD MANSFIELD. 


“ My Lord, — It was our wish to have waited personally upon 
your Lordship in a body, to have taken our public leave of you, 
on your retiring from the office of Chief Justice of England ; but, 
judging of your Lordship’s feelings upon such an occasion by our 
own, and considering, besides, that our numbers might be incon- 
venient, we desire in this manner affectionately to assure your 
Lordship, that we regret, with a just sensibility, the loss of a ma- 
gistrate whose conspicuous and exalted talents conferred dignity 
upon the profession, whose enlightened and regular administra- 
tion of justice made its duties less difficult and laborious, and 
whose manners rendered them pleasant and respectable. 

“ But, while we lament our loss, we remember, with peculiar 
satisfaction, that your Lordship is not cut off from us by the 
sudden stroke of painful distemper, or the more distressing ebb of 
those extraordinary faculties which have so long distinguished you 
amongst men ; but, that it has pleased God to allow to the even- 
ing of an useful and illustrious life, the purest enjoyments which 
nature has ever allotted to it, —the unclouded reflections of a 
superior and unfading mind over its varied events, and the happy 
consciousness that it hath been faithfully and eminently devoted 
to the highest duties of human society, in the most distinguished 
nation upon earth. May the season of this high satisfaction bear 
its proportion to the lengthened days of your activity and 
strength !” 

While the messenger waited, Lord Mansfield penned and 
despatched the following answer: — 


“ Dear Sir, —I cannot but be extremely flattered by the letter 
which I this moment have the honor to receive. If I have given 
satisfaction, it is owing to the learning and candour of the Bar, 
The liberality and integrity of their practice freed the judicial 
investigation of truth and justice from many difficulties. ‘The 
memory of the assistance I have received from them, and the 
deep impression which the extraordinary mark they have now 
given me of their approbation and affection has made upon my 
mind, will be a source of perpetual consolation in my decline of 
life, under the pressure of bodily infirmities which made it my 
duty to retire. 

“ T am, Sir, with gratitude to you and the other gentlemen, 
* Your most affectionate and obliged humble servant, 
‘© MANSFIELD. 
“ Kenwood, June 15. 1788.” 


NN 4 


551. 


CHAP. 
XXXIX, 





Av. 1788. 
Address to 
him by the 
King’s 
Bench bar. 


His answer. 


552 


CHAP. 
XL. 


A.D. 1788 


—1793. 
Lord 
Mansfield 
in retire- 
ment, 


REIGN OF GEORGE II. 


CHAPTER XL. 
CONCLUSION OF THE LIFE OF LORD MANSFIELD. 


Lorp MANSFIELD lived nearly five years after his resigna- 
tion, in the full enjoyment of all his mental faculties, memory 
included, — although his strength gradually declined. Since 
his house in Bloomsbury Square was burnt down, Kenwood 
had been his only residence; and here he remained, without 
being absent from it for a single night, till he breathed his last. 
He was much attached to the place: the great extent of the 
grounds gave ample scope for a display of his taste; he still 
went on planting and improving; he had great delight in 
showing the points from which the landscape appeared to 
most advantage ; and he was gratified by the assurances which 
were truthfully poured out by his admiring friends, that 
there was nothing more charming to be seen within fifty 
miles of the metropolis.* He resumed his study of the 
writings of Cicero, and, above all, he now prized his treatise 
Dr SENECTUTE, conforming himself much to the precepts 
there inculcated for giving a relish to this portion of human 
existence. 

Amidst the literary recreations and rural employments 
which made his days glide on delightfully, we might wish 
that he could have said with old Cato, “‘ Causarum illustrium, 
quascunque defendi, nunc quam maxime conficio orationes ;” 
but although he had taken pains in correcting his judgments, 
he seems to have been quite indifferent about his oratorical — 
fame, and he never had any ambition to be an author. 

* A few years ago, the fashionable world had an opportunity of appreciating — 
the taste of the great Lord Mansfield in the formation of this place, and seeing - 
the trees which, in his old age, he had planted with his own hand, a most splen- 
did féte champétre being given there by his great-grand-nephew and repre- 


sentative the present noble Earl ;—from whose splendid success on that oceasion, 


the worshippers of the illustrious Chief Justice hoped that the féte would be 
annual. 





LIFE OF LORD MANSFIELD. 


In the year 1784 he had lost his wife, after a happy union 
with her of half a century. His domestic establishment was 
now regulated, and his home made cheerful, by two ac- 
complished and affectionate nieces, daughters of Viscount 
Stormont. 

The sudden cessation of professional occupation and politi- 
cal excitement is dangerous only to a man whose mind has 
not received early culture, and who is destitute of literary 
resources. Lord Mansfield in his retirement was never op- 
ressed by ennui for a moment; and he found novelty and 
freshness in the calm, eventless life which he led. It should 
be mentioned, that his serenity was completed by a firm 
belief in the truths of religion, and the habitual observance 
of the pious rites which it prescribes. 


553 


CHAP. 
XL. 


A.D. 1788 
—1793, 


As a striking proof of the powers of mind and felicity of His opi- 


expression Sttoh still distinguished him, I am enabled to lay 
before the reader a few sentences dictated by him (which 
might be expanded into a folio volume) on a subject very 
interesting to his native country. Lord Swinton, a judge of 
the Court of Session, in the year 1787 published a pamphlet 
recommending the introduction of jury trial into Scotland in 
certain specified civil actions, and requested that he might 
have the opinion upon the subject of the individual best 
qualified to consider it from his unprecedented experience 
of juries and his familiar knowledge of the law both of 
Scotland and England. This request was conveyed through 
Lord Henderland, another judge of the Court of Session, who 
was related to Lord Mansfield by blood, and was married to 
his niece. The great jurist, thus consulted as an oracle, was 
then disabled from writing by rheumatism in his hand, and, 
on the score of indisposition, civilly declined giving any 
opinion to Lord Swinton; but his niece, Lady Anne, acting 
as his amanuensis, wrote a note to Lord Henderland, which 
thus concludes : —* L* H? will be so good to say so much, 
and no more, to L? Swinton; but the moment L* M®¢ heard 
the papers read, he dictated the inclosed memd™ for L* 
H* private use. He thinks the proposed introduction of 
juries is a very rash innovation, and will be attended with 
many consequences which no man alive can foresee.” 


nion upon 
the intro- 
duction of 
jury trial in 
civil cases 
in Scot- 
land, 


554 


CHAP. 


XL, 


A.D. 1788 
—1793. 


REIGN OF GEORGE III. 


Here follows the memorandum which was inclosed, every 
line of which is worth a subsidy : — 

‘“‘ Great alterations in the course of the administration of justice 
ought to be sparingly made, and by degrees, and rather by the 
Court than by the Legislature. The partial introduction of trials 
by jury seems to me big with infinite mischief, and will produce 
much litigation. 

“* Under the words proposed, it may be extended almost to any- 
thing, — reduction, restitution, fraud, injury. It is curious that 
fraud, which is always a complicated proposition of law and fact, 
was held in England as one of the reasons for a court of equity, to 
control the inconveniences of a jury trying it. The giving it to 
the desire of both parties might be plausible; but where one only 
desires that mode of trial it is a reason against granting it, be- 
cause many causes and persons have popular prejudices attending 
them which influence juries. 

“ A great deal of law and equity in England has arisen to 
regulate the course and obviate the inconveniences which attend 
this mode of trial. It has introduced a court of equity distinct 
from a court of law, which never existed in any other country, 
ancient or modern ; it has formed a practice by the courts of law 
themselves and by acts of parliament, bills of exceptions, special 
verdicts, attaints, challenges, new trials, &c. 

* Will you extend by a general reference all the law and equity 
now in use in England relative to trials by jury? The objections 
are infinite and obvious. On the other hand will you specify par- 
ticularly what their system should be? The Court of Session and 
the Judges of England, added together, would find that a very 
difficult task.” 

These principles were unfortunately overlooked in the year 
1807, when jury trial, exactly according to the English model, 
with its unanimity, special verdicts, and bills of exceptions, 
was introduced into Scotland. The experiment, I am afraid, 
has proved a failure, and Lord Mansfield’s predictions have 
been fatally verified. 

An amiable trait in his character, which distinguished him 
to the last, was, that he took a lively interest in the welfare 
of all connected with him. By his advice, two sons of Lord 
Henderland (the present Mr. Murray of Henderland, and 
Lord Murray, lately Lord Advocate, now a Judge of the 


LIFE OF LORD MANSFIELD. 


Court of Session) were sent to be educated at Westminster 
School.* The aged ex-Chief Justice was exceedingly kind to 
the boys, had them at Kenwood during the holidays, and 
sought to inspire them with a love of literature. 

In a letter from Mr. Murray, not written for publication, 
but from which I hope I may, without impropriety, make a 
few extracts, he says — 

“1 first saw Lord Mansfield when I went to Westminster 
School in 1787, and used occasionally to spend part of my holidays 
at Kenwood. He was very kind, treating me familiarly as a boy, 
and always called me schoolfellow. He took a great interest in all 
that was going on in Westminster School, used to talk of his 
boyish days, and relate anecdotes of what occurred when he was 
there. I remember one, of his having made a plum-pudding, and, 
there being no other apparatus for the purpose, it was boiled in 
his nightcap: he told this with great glee. He always drank 
claret, and had a small decanter containing a few glasses placed by 
him at dinner, which he finished. 

“ He still took pleasure in ornamenting his grounds. Some 
cedars in the wood opposite the house were planted by his own 
hand. 

“ He was a great admirer of Pope, and occasionally selected 
passages from his poems which he taught me to recite. His voice 
and modulation were beautiful. 

‘“‘ He told me he had conversed with a man who was present at 
the execution of the Blessed Martyr. How wonderful it seems 
that there should only be one person between me and him who saw 
Charles’s head cut off!” 

He used to have parties of King’s Bench lawyers to spend 
a day with him, and I have myself heard some of those who 
were present describe how agreeable he was. On one occasion 
they found him reading under a spreading beech-tree, when a 
young gentleman said to him rather flippantly, “ Instead of 
listening to the wrangling of Westminster Hall, how much 
better for your Lordship to be ‘ recubans sub tegmine fagi.’” 
He good-humouredly replied, — 


La @ Melibcee, Deus nobis hee otia feeit,” 
* It would appear that Lord Henderland was likewise influenced by the opi- 


nion of Dr, Johnson, with whom he had discussed the merits of English public 
schools, in a party at “ The Mitre.” See Boswell’s Life of Johnson, iii. 9. 


555 


CHAP: 
XL, 





A.D. 1788 
—1793. 


Recollec- 
tions of 
Lord 
Mansfield 
by his 
grand. 
nephew. 


His amuse- 
ments, 


556 
CHAP. 
XL. 


A.D. 1788 
—1793. 


His care of 
his for- 
tune. 


REIGN OF GEORGE III. 


A great amusement for him was, to hear what was going 
on in the Court of King’s Bench. With this view his 
countryman, James Allan Park, who became famous by com- 


- piling his decisions on the law of maritime insurance, used to 


visit him almost every evening during term, and to read to 
him what Lord Kenyon had been ruling in the morning. 
He bore with much composure the sneers at * the equitable 
doctrines which had lately been introduced into that court; ” 
and he revenged himself by laughing at his successor’s false 
quantities and misapplied quotations, which induced George 
IIL., at last, to advise the new Chief Justice “ to give up his 
bad Latin, and stick to his good law.” 

Lord Mansfield’s contemporaries being all swept from the 
stage, he wisely consoled himself by making acquaintance 
with the rising generation ; and he rejoiced that he could still 
converse with the illustrious masters of wisdom to be found 
in his library. He justly thought contemptuously of the low 
state into which literature had fallen when Hayley was con- 
sidered the successor of Pope; and he used to give as a toast, 
“ YounG FRIENDS AND OLD Books.” 

He never was considered avaricious; his establishment was 
upon a footing which became a wealthy nobleman, and he 
would sometimes give away money generously ; yet he cer- 
ainly had considerable pleasure in watching the enormous 
accumulation of his fortune. He neither invested it in the 
funds nor bought land with it, but had it all secured on mort- 
gage, saying, “ The funds give interest without principle, and 
land principal without interest, but mortgages both principal 
and interest.” * 

After his retirement, he took no part whatever in politics: 
like the gods of Epicurus, he looked down upon the events 
that were passing in the world without in any degree seeking to 
influence them. The last time he ever attended in the House 
of Lords was on the 22d of May, 1788, when his presence 
was required in consequence of some proceedings connected 
with a writ of error from the Court of King’s Bench; and he 
assisted neither the Government nor the Opposition by his 


* It is said that, at the time of his death, the annual interest on his mortgages 
amounted to 30,0002. 


LIFE OF LORD MANSFIELD. 


proxy.* It seems most wonderful that he should not have 
interfered in the unprecedented crisis which immediately 
followed, when the kingly office was for some months sus- 
pended by the insanity of George III. One would have 
supposed that the ex-Lord Chief Justice of England, who 
had been familiarly acquainted with the leaders of the Revo- 
lution effected exactly a century before, would, like his great 
rival, have been led to his seat, if unable to walk without 
support, and, at the risk of dying in the effort, would have 
proclaimed to his countrymen how, in his opinion, anarchy 
was to be warded off and the constitution was to be preserved. 
He once more showed that want of boldness which always 
prevented him from reaching the first rank of statesmen. As 
a sound constitutional lawyer, I think he must have come to 
the conclusion that the right of electing a regent arrogated to 
themselves by the two Houses of Parliament was wholly 
inconsistent with the principles of hereditary monarchy ; and 
that the heir apparent was entitled to exercise the preroga- 
tives of the crown during the King’s incapacity, as upon his 
natural demise. But he was probably afraid of avowing a 
doctrine which, though truly conservative, was most distaste- 
ful to all connected with the Government, on account of the 
transfer of power from one party to another which it was 
likely to produce; and he might have been reluctant to ally 
himself with Loughborough, who we now know, and he 
might then have discovered, had formed the desperate scheme 
of at once placing the Prince of Wales upon the throne 
without the sanction of Parliament. t However this may be, 
Lord Mansfield quietly ruminated amidst his cedars at Ken- 
wood while the furious struggle was going on almost within 
his hearing at Westminster, and when the phantom of royalty 
was evoked by a talisman called the GREAT Seat. Like all 
good subjects, he rejoiced in the King’s recovery, which 
rescued the country from such embarrassment, and he joined 
in the splendid illumination which celebrated that event. 


* J have ascertained these facts by searching the Lords’ Journals; which 
give the names of all the peers present at every meeting of the House, and all 
the proxies entered, every session. 

t+ See Lives of the Chancellors, vol. vi. ch. clxx. 

{ On this occasion there was a grand display of fireworks from Kenwood, to 
the delight of the inhabitants of Highgate and Hampstead. 


557 


CHAP. 
XL. 


A.D. 1788 
— 1793. 

He abstains 
from giving 
any opinion 
upon the 
Regency 
question. 


558 


CHAP. 
XL. 


A.p. 1788 


—1793. 


His views 
of the 
French 
Revolu- 
tion. 


REIGN OF GEORGE III. 


Nevertheless he still fostered a spite against Mr. Pitt, 
which he was at no pains to conceal in private conversation ; 
and, enjoying the difficulty into which the minister had fallen 
by his indiscretion respecting the Russian armament, he ex- 
pressed a hope “ that the power which had been acquired by 
empty rhetoric and a pretended wish for reform was drawing 
to a close.” 

But at the breaking out of the revolution in France he 
dreaded that the same wild love of liberty might be propa- 
gated in this country, and he was desirous that the Govern- 
ment should be supported. He took a very gloomy, and, as 
it turned out, a very just, view of this movement. His 
medical attendants now seem to have been his chief confidants. 
When the Constituent Assembly had agreed upon the first of 
the many constitutions attempted by our Gallic neighbours, 
and this seemed for the moment to be generally popular, 
Mr. Combe, his apothecary, observed to him, ‘“ Well, my 
Lord, the troubles in France are now over.” ‘ Over, sir, do 
you say?” answered Lord Mansfield; “ my dear sir, they 
are not yet begun!” 

On another occasion, when he had a visit from Dr. 
Turton, his physician, he thus broke off a discussion respect- 
ing his symptoms : — 

“ Instead of dwelling on an old man’s pulse, let me ask you, 
dear Doctor, what you think of this wonderful French Revolution ?” 
Dr. Turton: “ It is more material to know what your Lordship 
thinks of it.” Lord Mansfield: “ My dear Turton, how can any 
two reasonable men think differently on the subject? A nation 
which, for more than twelve centuries, has made a conspicuous 
figure in the annals of Europe: a nation where the polite arts 
first flourished in the Northern Hemisphere, and found an asylum 
against the barbarous incursions of the Goths and Vandals: a 
nation whose philosophers and men of science cherished and im- 
proved civilisation, and grafted on the feudal system, the best of all 
systems, their laws respecting the descents and various modifica- 
tions of territorial property: —to think that a nation like this 
should not, in the course of so many centuries, have learned 
something worth preserving, should not have hit upon some little 
code of laws, or a few principles sufficient to form one! Idiots! 
who, instead of retaining what was valuable, sound, and energetic 


LIFE OF LORD MANSFIELD. 


in their constitution, have at once sunk into barbarity, lost sight of 
first principles, and brought forward a farrago of laws fit for 
Botany Bay! It is enough to fill the mind with astonishment and 
abhorrence! A constitution like this may survive that of an old 
man, but nothing less than a miracle can protect and transmit it 
down to posterity !” 

Horrors broke out and succeeded each other even more 
rapidly than he had anticipated ; and, old as he was, he lived 
to hear the news that, every vestige of liberty being extin- 
guished in France, the Reign of Terror was inundating the 
country with blood, and Louis XVI., the constitutional king, 
was executed on the scaffold as a malefactor. 

By Lord Mansfield’s advice, his nephew, Lord Stormont, 
henceforth took an active part in the debates of the House 
of Lords, as a defender of the Government; saying, “ that he 
was called upon, not by dislike of one set of public men or 
preference of another, but by the duty of averting the danger 
which threatened the constitution of the country, to range 
himself under the broad banner of the law, and to add one to 
the great phalanx that was to shield it from the poisoned arrows 
directed against it.” * 

Mr. Pitt now voluntarily offered the new grant of the earl- 
dom of Mansfield, with a direct remainder, to Lord Stor- 
mont, without which this nobleman would never have been a 
British peer. 

The ex-Chief Justice was probably the more gratified by 
the coalition which took place with a portion of the Whigs 
as it led to the dismission of Lord Thurlow, whom he had 
ever disliked, and the transfer of the great seal to Wedder- 
burn, for whom he felt kindness, notwithstanding the political 
lubricity which had marked the career of this splendid adven- 
turer and had brought some disgrace on their common 
country. 

But the hour was at hand in which to the dying Lord 
Mansfield all worldly speculations were vanity, and he had 
only to think of the awful change by which he was to enter 
into a new state of existence. So completely had he retained 
his mental faculties, that, only a few days before his last 


* 29 Parl. Hist. 1571. 


559 


CHAP. 
XL. 


A.D. 1792, 
1793. 


His con- 
tinuing 
powers of 
memory. 


560 


CHAP. 


XL. 


A.D. 1793. 


His last 
illness, 


REIGN OF GEORGE III. 


illness, his niece, Lady Anne, having in his hearing asked a 
gentleman what was the meaning of the word psephismata in 
Mr. Burke’s book on the French Revolution, and the answer 
being that it must be a misprint for sophismata, the old 
Westminster scholar said “No, psephismata is right ;” and 
he not only explained the meaning of the word with critical 
accuracy, but quoted offhand a long passage from Demo- 
sthenes to illustrate it. 

Though never afraid of death, towards which he looked 
with composure and confidence, he was always afraid of suf- 
fering pro formd, as he expressed it; and a few years pre- 
viously he had with much earnestness exacted a solemn pro- 
mise from the physician who attended him, “that he would 
not unnecessarily torment him, but that, when he from ex- 
perience should think his time was come, he would let him 
die quietly.” The time had arrived when this injunction was 
to be obeyed. 

On Sunday, the 10th of March, 1793, although the night 
before he had been quite cheerful, and had with clearness 
expounded to Lord Stormont the merits of a law case then 
depending in the House of Lords, he did not talk at breakfast 
as usual, but seemed heavy, and complained of being very 
sleepy. He was placed in bed, and, his pulse being low, 
stimulants and cordials were ordered for him. On Monday 
he was rather better, and on Tuesday he desired to be taken 
up and carried to his chair; but he soon wished again to 
be in bed, and said, “ Let me sleep! let me sleep!” It 
might have been expected that, in the wandering of his 
thoughts which followed, he might have conceived himself 
in some of the most exciting scenes of his past life, and that 
he might have addressed some taunt to Lord Chatham re- 
specting the action for damages to be brought against the 
House of Commons, —or, like Lord Tenterden, he might have 
desired the jury to consider whether the publication and the 
tnnuendoes were proved on a trial for libel, cautioning them 
to leave the question of libel or no libel for the court. Buthe 
never spoke more. On his return to bed he breathed freely 
and softly like a child, and with as calm and serene a counte- 
nance as in his best health, though apparently ever after void 


LIFE OF LORD MANSFIELD. 


of consciousness. An attempt to give him nourishment 
having failed, his mouth was merely moistened with a feather 
dipped in wine-and-water. In this state he languished free 
from pain till the night of Wednesday the 20th of March, 
when he expired without a groan “in a good old age, full of 
days, riches, and honour.” He had entered his 89th year; 
and as his life had been long and prosperous, so his death was 
such as he had desired. He was amply prepared for it. 
From the time when he was unable to attend his parish 
church, the communion had, at short intervals, been privately 
administered to him; and he was in the habit of piously de- 
claring that he was ready to obey the summons from the 
world in which he had enjoyed so many blessings, contented 
and grateful. 

Although he had long withdrawn from the gaze of man- 
kind, the news of his death caused a deep sensation, and 
there was a general desire that he should have a public funeral. 
All the judges and members of the bar had resolved to attend 
it in a body; and Whig statesmen as well as Tory intimated a 
desire to testify their respect for his merits as a magistrate by 
joining in the solemnity. But, his will being opened, it was 
found that after expressing a wish that he should be buried in 
Westminster Abbey, modestly giving as a reason “ the attach- 
ment he felt for the place of his early education,” he expressly 
directed that his funeral should only be attended by his re- 
lations and private friends. Accordingly his remains were 
deposited in Westminster Abbey in the same grave with 
those of his deceased wife, between the tombs of Lord 
Chatham and Lord Robert Manners; and there a splendid 
monument was erected to his memory, the workmanship of 
Flaxman,— the expense being defrayed by a legacy of 1500. 
gratefully bequeathed for this purpose by a client for whom, 
when at the bar, by an extraordinary display of his eloquence, 
he had recovered a great estate. 

His will, dated the 17th of April, 1782, all in his own hand- 
writing, thus piously began: “* Whenever it shall please 
Almighty God to call me to that state to which, of all I now 
enjoy, I can carry only the satisfaction of my own conscience 

and a full reliance upon his mercy through Jesus Christ.” — 
Bo VOL..IL 00 


561 


CHAP. 
XL. 


A.D, 1793. 
His death. 


His 
funeral. 


His will. 


CHAP. 


His posi- 
tion among 
the lawyers 
of the 18th 
century. 


REIGN OF GEORGE III. 


He then goes on in very plain, clear, and untechnical lan- 
guage to make provision for those depending upon him, to 
leave legacies to friends, and to bequeath the rest of his 
property to his nephew Lord Stormont; thus concluding, 
with good sense and good feeling: “Those who are dearest 
and nearest to me best know how to manage and improve, 
and ultimately in their turn to divide and subdivide, the 
good things of this world which I commit to their care, 
according to events and contingencies which it is impossible 
for me to foresee, or trace through all the mazy labyrinths of 
time and chance.” 

Lord Mansfield must, I think, be considered the most 
prominent legal character, and the brightest ornament to the 
profession of the law, that appeared in England during the last 
century. As an advocate he did not display the impassioned 
eloquence of Erskine, but he was for many years the first 


-man at the bar among powerful competitors. Both before a 


jury in the Common Law courts, and addressing a single judge 
in the courts of Equity, by the calm exertion of reason he 
won every cause in which right was with him, or which was 
doubtful. There was a common saying in those days, “ Mr. 
Murray’s statement is of itself worth the argument of any 
other man.” Avoiding the vulgar fault of misrepresenting 
and exaggerating facts, he placed them in a point of” view so 
perspicuous and so favourable to his client, that the verdict 
was secure before the narrative was closed. The observa- 
tions which followed seemed to suggest trains of thinking 
rather than to draw conclusions; and so skilfully did he 
conceal his art, that the hearers thought they formed their 
opinion in consequence of the workings of their own minds, 
when in truth it was the effect of the most refined dialectics. 
For parliamentary oratory he was more considerable than 
any lawyer our profession could boast of till the appearance 
of Henry Brougham,—having been for many years in both 
Houses in the very first rank of debaters. Lord Somers 
entered parliament late in life, and could not speak without 
long preparation. Lord Cowper was much more ready; but 
he had not had the benefit of an academical education, and 
his political information was rather limited. Lord Har- 
court hardly aspired to rise above the level of the Tory 


LIFE OF LORD MANSFIELD. 


squires by whom he was surrounded. Lord Macclesfield 
was unpolished, though forcible; and Lord King was dull 
and tiresome. Lord Hardwicke had very moderate success 
in the House of Commons, and his weight in the House of 
Lords arose rather from his high judicial reputation than 
from his eloquence. Lord Camden’s set speeches in the 
House of Lords were admirable ;— but he had been found 
quite unequal to the noise and irregularities of the House of 
Commons. Dunning, amidst all this turbulence, was in his 
element, and was listened to almost as well as Charles Fox 
himself; — but he could not bear the stillness of the Upper 
House, and there he fell into insignificance. Even Lord 
Plunkett caused disappointment when he spoke in the House 
of Lords, after having been acknowledged in the House of 
Commons to be superior to Peel or to Canning. Neither in the 
one House nor in the other did Erskine ever do anything at 
all commensurate to his forensic reputation. Thurlow pre- 
vailed more by the shagginess of his eyebrows and the 
loudness of his vociferation, than by his sentiments or his 
expressions; and the effect of Wedderburn’s oratory, which 
was far more artistic, was ruined by his character for in- 
sincerity. When Lord Eldon had broken down in an attempt 
he made in the House of Commons to be humorous, he never 
aimed at anything beyond the pitch of an Equity pleader ; 
and Lord Redesdale’s speeches in Parliament would have 
been reckoned dull even in the Court of Chancery. Of Lord 
Mansfield’s three successors, Lord Kenyon, Lord Ellen- 
borough, and Lord Tenterden, the first affected a knowledge 
of nothing beyond law, exeept a few Latin quotations which 
he constantly misapplied ;—the second, though a scholar, and 
a ripe and good one, was only a few months in the House of 
Commons, during which he did nothing beyond bringing in a 
law bill; and in the House of Lords he rather alarmed the 
Peers by violent ebullitions of indignation, than charmed or 
convinced them by polished reasoning ; — the last, having de- 
voted all his best years to the drawing of special pleas, never was 
a member of the House of Commons, and the few times that 
he addressed the Lords he seemed to be opening to the jury 


the issues joined on some very complicated record. But 
oo 2 


563 


CHAP. 
XL. 





564 


CHAR. 
XL. 





Felicity of 
the life of a 
lawyer 
practising 
under him. 


REIGN OF GEORGE Ili. 


when Murray was in the House of Commons, the existence of 
administrations depended upon his giving or withholding 
from them the aid of his eloquence, and in the House of 
Lords he was listened to with increased respect and deference. 
The combination of this excellence with his other perform- 
ances is certainly much to be wondered at; for, while his 
competitors were preparing for the approaching conflict by 
conning over the works of orators and poets, he was obliged 
to devote himself to the YEAR-Booxks, and to fill his mind 
with the subtleties of contingent remainders and executory 
devises. Who is there that could have argued against Mr. 
Justice Blackstone in the morning concerning the application 
of the rule in Shelley’s Case, and in the evening shown himself 
equal to Lord Chatham on the question of the right of the 
British Parliament to tax America, or the policy of declaring 
war against Spain ? * 

Nothing remains to be said for the purpose of proving that 
he was the first of Common Law judges. Looking to the 
state of the Court of King’s Bench in his time, it is impos- 
sible not to envy the good fortune of those who practised 
under him. The most timid were encouraged by his cour- 
tesy, and the boldest were awed by his authority. From his 
quickness, repetition and prolixity were inexcusable; and 
there was no temptation to make bad points, as sophistry 
was sure to be detected, and sound reasoning was sure to 
prevail. When the facts were ascertained, the decision might 
be with confidence anticipated ; and the experienced advocate 
knew when to sit down, his cause being either secure or 
hopeless. The consequence was, that business was done 
not only with certainty, but celerity; and men making 
many thousands a year had some leisure both for recreation 


* Soon after his death, the following tribute was paid to his powers as an 
orator, by one who had often listened to him:—“ As a speaker in the House 
of Lords, where was his competitor? The grace of his action, and the fire and 
vivacity of his looks, are still present to imagination; and the harmony of his 
voice yet vibrates in the ear of those who have been accustomed to listen to him. 
His Lordship possessed the strongest powers of discrimination; his language 
was elegant and perspicuous, arranged with the happiest method, and applied 
with the utmost extent of human ingenuity ; his images were often bold, and 
always just; but the character of his eloquence is that ef being flowing, perspi- 
cuous, convincing, and affecting.” —Burton’s Character of Classical Remains, 


LIFE OF LORD MANSFIELD. 


and elegant literature.* We need not wonder that, being 
prosperous and happy under him, they were eager to pay him 
homage, and that they exulted in his paternalsway. We may 
form a notion of the love and respect with which he was re- 
garded from the following appeal to him, when we know that 
the speaker was Erskine, the most fearless and independent 
of men, addressing him in the case of the Dean of St. Asaph: 

“ T am one of those,” said he, “ who could almost lull myself by 
these reflections from the apprehension of zmmediate mischief, even 
from the law of libel laid down by your Lordship, if rou were 
always to continue to administer it yourself. I should feel a pro- 
tection in the gentleness of your character ; in the love of justice 
which its own intrinsic excellence forces upon a mind enlightened 
by science, and enlarged by liberal education ; and in that dignity 
of disposition, which grows with the growth of an illustrious repu- 
tation, and becomes a sort of pledge to the public for security. 
But such a security is a shadow which passeth away. You cannot, 
my Lord, be immortal, and how can you answer for your successor ? 
If you maintain the doctrines which I seek to overturn, you render 
yourself responsible for all the abuses that may follow from them 
to our latest posterity.” f 

There was no grumbling against him except by long- 
winded orators, who complained that during their impassioned 
replies he sometimes read a newspaper; but he never did so 
till the evidence was closed and he was complete master of 
the case. He would then, by looking at the Datty Ap- 
VERTISER, give a hint that the public time was wasted by 
the counsel. Never, from indulging his curiosity about 
political events, did he make a remark which showed that he 
was not aware of the real question to be tried, nor afford any 
encouragement to move for a new trial by inadvertences 
into which he had fallen. 

The absurd cry that he knew no law, gained countenance 
only from the envy of the vulgar, who are always eager to 
pull down those who soar above them to their own level, and, 
in our profession, will insist that if a man is celebrated for 


* JT have been told by Lord Erskine, — “ In Lord Mansfield’s time, although 
the King’s Bench monopolised all the common-law business, the Court often 
rose at one or two o’clock,— the papers, special, crown, and peremptory, being 
cleared; and then I refreshed myself by a drive to my villa at B Pam psteed, Hy 

¢ Erskine’s Speeches, i, 261. 

oo 3 


565 


CHAP. 
XL. 


Solution 
of the 
charge 
that he 
knew no 
law. 


566 


CHAP. 
XL. 


Sermon 
written by 
him and 
preached 
by a 
bishop. 


REIGN OF GEORGE III. 


elegant accomplishments he can have no law, and if he is 
distinguished as a deep lawyer that he can have no elegant 
accomplishments : — 


«“ The Temple late two brother-serjeants saw, 
Who deem’d each other oracles of law : 
With equal talents these congenial souls, 
One lull’d the Exchequer, and one stunn’d the Rolls; 
Each had a gravity would make you split, 
And shook his head at Murray as a wit.” * 

T cannot adopt Dr. Johnson’s refutation of the charge, — 
* Asto Lord Mansfield’s not knowing law, you may as well say 
that a coachman who has driven a stage several times a day 
for twenty years between London and Brentford does not 
know the road,” — for no experience in practice, without a 
proper foundation by long study, will make a good lawyer; 
but in this instance we have before our eyes stupendous 
proofs of juridical knowledge, and the best answer is CIRCUM- 
SPICE. 

It has been said reproachfully, that, although he was a 
member of the legislature for half a century, we have no 
“Lord Mansfield’s Act.” Yet when our Civiz Cope shall 
be compiled, a large portion of it, and one of the best, will 
be referred to his decisions. The observation has been truly 
made, that “he has done more for the jurisprudence of this 
country, than any legislator or judge or author who has ever 
made the improvement of it his object.” f 

Unless Cowper’s suggestion, that the manuscripts of original 
works from his pen were burnt in the riots of 1780, be true, 
he never wrote any thing for the press) He was master, 
however, of a correct classical English style, —a very 
rare accomplishment among his professional contemporaries.t{ 

We have a curious specimen of this in a sermon which he 
wrote for his friend and protégé Bishop Johnson, who was 
suddenly called upon to preach in Westminster Abbey on 
the 29th of November, 1759, being a day of thanksgiving 








* « Frater erat Rome consulti rhetor; ut alter 
Alterius sermone meros audiret honores,” &c. 
+ Welsby, 448. 
¢ Lord Chancellor Northington, his schoolfellow at Westminster, could not 
write grammatically. After Bacon, Mr. Justice Blackstone was the first prac- 
tising lawyer at the English bar who, in writing, paid the slightest attention 
to the selection or collocation of words. 


a 


LIFE OF LORD MANSFIELD. 


appointed to be observed for the signal successes with which 
his Majesty’s arms had been blessed. A vote of thanks was 
passed by the Lords spiritual and temporal to the preacher 
tor his excellent discourse, and he was ordered to “ cause the 
same to be forthwith printed and published.”* It accordingly 
was given to the world as the composition of “James, by 
Divine Providence Lord Bishop of Worcester.” The most 
remarkable feature in it is its inculcation of “ good revolution 
principles; ” showing a great change of sentiment since the 
times when the Chief Justice and the Bishop, supping at 
Mr. Vernon’s, the Jacobite mercer in Cheapside, drank the 
Pretender’s health upon their knees. The sermon,—which is 
from the text ‘ Blessed be the name of God for ever and ever, 
Sor wisdom and might are His,”+ — after dwelling upon the 
special interpositions of Providence in favour of this nation, 
particularly in dispersing the Spanish Armada, thus pro- 
ceeds : — 

“‘ The same Providence, propitious to the liberties and the happy 
constitution of this country, in the next century gave a prosperous 
course to a fleet set out for the deliverance of this kingdom from 
arbitrary power, superstition, and slavery.” 

It afterwards follows up a panegyric on the virtues of 
George II. with the following prayer : — 

“ May that God whose providence he devoutly adores in 
these his dispensations, give him a farther increase of glory and 
happiness by fresh advantages over his enemies; and, in His own 
good time, crown these important successes in war, and complete 
his happiness by making him the instrument of securing and 
establishing to us the solid and substantial blessings of peace! 
And may the happiness we enjoy by his government be perpetuated 
to us under his family to the latest posterity !”t 

There is no equivoque here like “the KiIn@ over the 
water.” But I doubt not that both the Bishop and the 
Judge were now sincere, and that, the cause of the Stuarts 
being hopeless, they exulted in the prospects which the country 
had on the accession of a young prince into whose mind they 
had assisted to instil the doctrine of the divine right of 


* Lords’ Journals, 3d Dec. 1759. + Dan. ii. 20. 
+ Holl. 488. 491. 497. 


oo 4 


567 


CHAP. 
XL. 


568 


CHAP. 
XL. 


His de- 


meanour 


in society. 


REIGN OF GEORGE III. 


kings, together with a horror of that religion which had 
proved the ruin of the exiled family. 

Lord Mansfield appeared nowhere to greater advantage 
than in the social circle. He did not make a display of con- 
descension like a low-bred man, who, accidentally reaching 
an elevated position, wishes kindly to notice his former asso- 
ciates. He did not imitate those who, by the joint exertion 
of a great memory and aloud voice, quite unconscious of doing 
any thing amiss, put an end to conversation by a perpetual 
pouring forth of observations and quotations which may be use- 
ful in an encyclopedia, but which are tiresome ina lecture. He 
always comported himself like a well-bred gentleman among 
his equals. He considered that men are to gain renown in 
the field of battle, in the forum, and in the senate, but that 
society is for relaxation ; and, instead of making people despise 
themselves and hate him by the overwhelming proof of su- 
perior powers and acquirements, he studied to render others 
dearer to themselves, and consequently to inspire into them a 
benevolent feeling towards himself, by giving them an oppor- 
tunity of contributing to the general amusement, and of bring- 
ing out the information which they peculiarly possessed. His 


general rule was, to reward every man’s jest with a smile, 


although he could not conceal his dislike to a bore or a cox- 
comb. According to the account of one who had been inti- 
mately acquainted with him for many years, “‘ He was always 
as ready to hear as he was to deliver an opinion. The facility 
of conversing with ease and propriety he retained to the very 
last, and he was as quick at reply in his latter years as at any 
period of his life: whether he supported his own arguments 
or refuted those of his adversary, his observations were de- 
livered with that judgment and grace which evinced the pre- 
cision of a scholar and the elegance of a gentleman.” * 


* See Holliday, 475. The following description of his conversational powers 
is by Richard Cumberland: —“ I eannot recollect the time when, sitting 
at the table with Lord Mansfield, I ever failed to remark that happy and 
engaging art which he possessed of putting the company present in good 
humour with themselves; Iam convinced they naturally liked him the more 
for his seeming to like them so well. This has not been the general pro- 
perty of all the witty, great, and learned men whom I have looked up to in my 
course of life. He would lend his ear most condescendingly to his company, 
and cheer the least attempt at humour with the prompt payment of a species of 
laugh; which cost his muscles no exertion, but was merely a subscription that 
he readily threw in towards the general hilarity of the table. He would take 


LIFE OF LORD MANSFIELD. 


569 


Although he had too much taste systematically to aim at CHAP. 


jocularity, there are facetie of his which still enliven the tra- 


XL. 


ditions of Westminster Hall. — An old Jew, who was dressed 4y;, 
in a tawdry suit of clothes covered with gold lace, justifying facetie. 


as bail before him in an action brought to recover a debt of 
small amount, having sworn that he was worth double the sum, 
and having enumerated property belonging to him of much 
greater value, was still examined and cross-examined, and 
teazed and badgered, by Serjeant Davey, — till at last the 
Chief Justice exclaimed, “‘ For shame, brother Davey! don’t 
you see that he would burn for the money ?” 

Trying a prisoner at the Old Bailey on a charge of stealing 
in a dwelling-house to the value of forty shillings, when this 
was a capital offence, — he advised the jury to find a 
gold trinket, the subject of the indictment, to be of less 
value. The prosecutor exclaimed, with indignation, “ Under 
forty shillings, my Lord! Why the fashion, alone, cost me 
more than double the sum.” Lord Mansfield calmly ob- 
served, “ God forbid, gentlemen, we should hang a man for 
fashion’s sake!” 

An indictment was tried before him at the assizes, preferred 
by parish officers, for keeping an hospital for lying-in women, 
whereby the parish was burdened with bastards. At the 
opening of the case he expressed doubts whether this was an 
indictable offence, and, after hearing a long argument in sup- 
port of it, he thus gave judgment: — “ We sit here under a 
commission requiring us to deliver this gaol, and no statute 
has been cited to make it unlawful to deliver a woman who 
is with child. Let the indictment be quashed.” 

Macklin, against whom he might be supposed to entertain 
some spite for libelling his countrymen under the names of 


his share in the small talk of the ladies with all imaginable affability ; he was, 
in fact, like most men, not in the least degree displeased at being incensed by 
their flattery.” — Mem. il. 344. 

«“ That his manners,” says Lord Brougham, “ were polished and winning, can 
easily be believed from the impression his public appearances uniformly made. 
But when to these were added his great and varied knowledge, chiefly of a kind 
available to the uses of society, his cheerful spirits and mild temper, his love of 
harmless pleasantry, and his power of contributing towards it by a refined and 
classical wit, it is not difficult to understand what the reports mean which unite 
in describing him as fascinating beyond almost all other men of his time,”— 
Statesmen, i. 121, 122. 


570 


CHAP. 
XL. 


REIGN OF GEORGE III. 


Str Archy Macsarcasm and Sir Pertinax Macsycophant, re- 
covered a verdict, with 7002. damages, in an action tried in 
the King’s Bench for a conspiracy to hiss him off the stage. 
After the verdict was pronounced, the magnanimous player 
said, “ My Lord, my only object was to vindicate, before the 
public, my own character and the rights of my profession; 
and, having done so, I waive the damages awarded to me.” 
Lord Mansfield: “ Mr. Macklin, I have many times witnessed 
your performance with great delight; but, in my opinion, 
you never acted so finely as in the last scene of this piece.” 

Having met at supper the famous physician, Dr. Brocklesby, 
he entered into familiar conversation with him, and inter- 
changed some stories a little trenching on decorum. It so 
happened that the Doctor had to appear next morning before 
Lord Mansfield, in the witness-box; when, on the strength 
of last night’s doings, the witness nodded, with offensive 
familiarity, to the Chief Justice, as to a boon companion, 
His Lordship, taking no notice of his salutation, but writing 
down his evidence, when he came to summing it up to the 
jury, thus proceeded: — “ The next witness is one Rocklesby 
or Brocklesby, Brocklesby or Rocklesby, —I am not sure which, 
— and, first, he swears that he is a physician.” 

Trying an action which arose from the collision of two 
ships at sea, a sailor, who gave an account of the accident, 
said, “ At the time, I was standing abaft the binnacle.” Lord 
Mansfield asked ‘‘ where is abaft the binnacle ?” upon which the 
witness, who had taken a large share of grog before coming into 
court, exclaimed, loud enough to be heard by all present, « A 
pretty fellow to be a judge, who does not know where abaft 
the binnacle is!” Lord Mansfield, instead of threatening to 
commit him for his contempt, said, “ Well, my friend, fit me 
for my office by telling me where abaft the binnacle is; you 
have already shown me the meaning of half seas over.” 

Lord Chief Baron Parker, in his 87th year, having observed 
to Lord Mansfield, in his 78th, “ Your Lordship and myself 
are now at sevens and eights,” the younger Chief replied, 
«* Would you have us be all our lives at stzes and sevens ? — 
but let us talk of young ladies, and not of old age.” 

After Parker had resigned, he continued to enjoy vigorous 





LIFE OF LORD MANSFIELD. 


health; while Sir Sydney Stafford Smyth, who succeeded 
him, was often prevented, by infirmity, from attending in 
Court: upon which Lord Mansfield observed, “The new 
Chief Baron should resign in favour of his predecessor.” 

There was only one man at the bar to whom Lord Mans- 
field did not behave with perfect courtesy; and the temptation 
to quiz him was almost irresistible. This was Serjeant Hill, 
a very deep black-letter lawyer, quite ignorant of the world, 
and so incapable of applying his learning that he acquired 
the nickname of Serjeant Labyrinth. In an argument which 
turned entirely on the meaning of an illiterate old woman’s 
will, he cited innumerable cases from the YEAR-Booxks down- 
wards; till Lord Mansfield at last asked, “ Do you think, 
brother Hill, that though these cases may occupy the atten- 
tion of an old woman, this old woman ever read them? or 
that any old woman can understand them?” 

On the trial of an ejectment, a deed being offered in 
evidence which purported to be an “indenture,” but which, 
instead of haying its parchment edge running zig-zag as 
usual, appeared to have been cut quite straight, Serjeant 
Hill, for the defendant, objected that it could not be received 
in evidence, because “ the law says that such a conveyance of 
real property must be by indenture; and this instrument is 
not an indenture, for there must be two parties to an inden- 
ture; therefore there are two parts of it, one to be executed 
by each party; the counterparts must be written on the same 
piece of parchment, and then cut in a waving line, so that, as 
a guard against forgery, they may fit in when applied to each 
other: the instrument is thus called an indenture, because 
it is instar dentium.” Ue then fortified his argument by 
many dicta from the text-writers, and decisions from the 
Year-Booxks. Lord Mansfield: “Brother Hill, hand me 
up the deed.” Having applied it to his right eye, while he 
closed the left, and looked for some time along its edge, 
he thus pronounced judgment: — “I am of opinion that this 
is not a straight mathematical line; therefore it is instar 
dentium, and comes within your own definition of an inden- 
ture. Let it be read in evidence.” 

The same Serjeant, who had very little respect for the law 


Jokes on 
Serjeant 
Hill. 


572 


CHAP: 
XL. 


His advice 
to a gene- 
ral about 
to act asa 
colonial 
judge. 


REIGN OF GEORGE III. 


of any living judge, arguing a question about whether there 
was sufficient evidence to support an action of_ trespass for 
breaking a hole through a wall which separated the houses 
of the plaintiff and the defendant, Lord Mansfield suggested 
that, although the hole was proved to be there, and the de- 
fendant had used it, possibly it might long before have existed 
there. The Serjeant thereupon, in rather an impertinent 
manner, exclaimed, “I should like any real lawyer to tell me 
whether there be any authority in the books for such a pre- 
sumption?” Lord Mansfield: “I rather think, brother 
Hill, that you will find the point mooted in the case of 
“ Pyramus and Thisbe ;”* and, in the report of that case, if I 
remember right, it is said, — 


« Fissus erat tenui rima, quam duxerat olim, 
Cum fieret, paries domui communis utrique. 
Id vitium nulli per secula longa notatum.” + 


A general officer in the army, a friend of Lord Mansfield, 
came to him one day in great perplexity, saying that he had 
got the appointment of governor of a West India island; 
which made him very happy till he found that he was not 
only to be commander-in-chief, for which he thought himself 
not unfit, but that he was likewise required to sit as chan- 
cellor and to decide causes, whereas he was utterly ignorant 
of law and had never been in a court of justice in his life. 
Lord Mansfield said to him, “ Be of good cheer — take my 
advice, and you will be reckoned a great judge as well asa 
great commander-in-chief. Nothing is more easy ; only hear 
both sides patiently —then consider what you think justice 
requires, and decide accordingly. But never give your 
reasons; —for your judgment will probably be right, but 
your reasons will certainly be wrong.” In telling the anec- 
dote to his grand-nephew, the present Mr. Murray of Hen~ 
derland, he added, “I was two or three years afterwards 
sitting at the Cock-pit upon Plantation appeals, when there 


* 400 Mat. 55. 

+ The Serjeant was helpless in court, the laugh being always turned against 
him; but he revenged himself by writing in the margin of his law books many 
contemptuous observations on Lord Mansfield, which may now be seen in 
Lincoln’s Inn library. He survived to my time; and, although he had ceased 
to go into court, I have seen him walking up and down in Westminster Hall, 
wearing a great shovel hat, attached to his head with a silk handkerchief tied 
round his chin. 


a 


LIFE OF LORD MANSFIELD. 


was one called from my friend and pupil, the General, — 
which the losing party had been induced to bring on account 
of the ludicrously absurd reasons given for the judgment, 
which indeed were so absurd that he incurred some suspicion 
of corruption, and there was a clamour for his recall. Upon 
examining it, however, I found that the judgment itself was 
perfectly sound and correct. Regretting that my advice had 
been forgotten, I was told that the General, acquiring re- 
putation by following it, began to suppose himself a great 
lawyer; and that this case brought before us was the first in 
which he had given his reasons, and was the first appealed 
against.” 

By the display of the wonderful powers and attainments to 
which I have referred, Lord Mansfield more steadily filled a 
large space in the public eye than any civilian of his generation; 
and, sitting on his tribunal, he had acquired a fame equal to 
Wolfe or to Rodney. Of this we have an instance in the fol- 
lowing dialogue at the table of Dr. Scott (afterwards Lord 
Stowell), at which many of the most distinguished men of the 
day were present : — Johnson: “ Every man thinks meanly of 
himself for not having been a soldier, or not having been at 
sea.” Boswell: * Lord Mansfield does not.” Johnson: “ Sir, 
if Lord Mansfield were in a company of general officers and 

_admirals, who have been in service, he would shrink ; he’d 
wish to creep under the table.” Boswell: “ No; he’d think 
he could ¢ry them all.” Johnson: ‘‘ Yes, if he could catch 
them; but they’d try him much sooner. No, sir; were 
Socrates and Charles the Twelfth of Sweden both present in 
any company, and Socrates to say ‘Follow me, and hear a 
lecture in philosophy,’ and Charles, laying his hand on his 
sword, to say ‘ Follow me, and dethrone the Czar,’ a man 
would be ashamed to follow Socrates.” * The compliment of 
Boswell may have little weight; but Johnson here allows that 
Lord Mansfield, though of a nation whom he abhorred and 
wished to disparage, was the best instance which England 
then afforded of an illustrious noncombatant, and he brackets 
him with the greatest of Greek philosophers. Nor was the 
stern Scot-hater on this occasion influenced by any soothing 


* Life of Johnson, ili. 287. 


573 


CHAP. 
XL. 


The 

space occu- 
pied by 
him in the 
public eye. 


574 


CHAP. 
XL. 


His habits 
of industry 
and tem- 
perance. 


REIGN OF GEORGE III. 


homage or personal familiarity; for, strange to say, Lord 
Mansfield and he had never met — as we learn from another 
dialogue between the same interlocutors. Boswell: ‘ Lord 
Mansfield is not amere lawyer.” Johnson: “ No, sir: I never 
was in Lord Mansfield’s company; but Lord Mansfield was 
distinguished at the University. Lord Mansfield, when he 
first came to town, ‘drank champagne with the wits.’ He 
was the friend of Pope.” * 

It would be highly instructive, considering Lord Mans- 
field’s multiplicity of engagements, all of which he fulfilled so 
admirably, to have learned what were the rules he laid down 
for the distribution of his time ; — but all we know, and this 
should ever be borne in mind by those who would rise to 
eminence, that he was habitually industrious and habitually 
temperate. A sentence given him as a copy, when he began 
to learn text-hand at Perth school, was 


Chere fevcclo ludemits. 


This he used often to repeat in after-life, and always to act 
upon. For example, when the great case of Doe ex dem. 
Taylor v. Horde was depending, which required a research into 
some of the most recondite points of the law of real property, 
he thus wrote to a friend: — “I am very impatient to dis- 
charge myself entirely of it. While the company is at cards 
I play my rubbers at this work, not the pleasantest in the 
world; but what must be done I love to do and have it over.” 
He would sometimes talk of the dolce far niente ; and would 
quote the saying, “Liber esse mihi non videtur, qui non 
aliquando nihil agit.” But, in truth, he refreshed himself by 
varying his occupation, and allowing one faculty of his mind 
to repose while he called another into activity. Of course, 
such a system was inconsistent with a deranged stomach and 
aching temples. By nature (Dr. Johnson would probably 
have said from early endurance) he had a marvellous power 

* Life of Johnson, ii. 161, He softened his mortification by the delusive belief 
that Wm. Murray had been caught very young,—and he considered Lord Mansfield 
as in reality an Englishman when he gave his celebrated answer to the ques- 
tion — * As you praise Buchanan so much, although he was a Scotchman, what 
would you have said of him, Dr. Johnson, if he had been an Englishman?” 


“ Sir, I would not have said of him what I now do say,— that he was the only 
great man his country ever produced.” 


LIFE OF LORD MANSFIELD. 


of bearing abstinence. ‘ After having waited for his regular 
meal, through the press of much and tedious business, to a 
late hour at night, he has repeatedly said that he never 
knew what it was to be thirsty, or faint with hunger.” * 
Yet he was no water-drinker ; and reverently recollecting how 
wine was supplied to the guests assembled at the marriage in 
Cana, on which so many epigrams had been made at West- 
minster, he thought there could be no sin in the moderate use 
of it. He had sufficient control over himself to be temperate 
without being ascetic. He always retained the Scottish taste 
for claret, which he had heard so loudly extolled and seen’ so 
liberally quaffed in his early youth,—and he said that in 
experience he found it to yield the most pleasure with the 
least risk of ill consequence. Insisting that it was peculiarly 
adapted to the temperament of Scotchmen, he would repeat 
John Home’s lines, made when the tax was laid upon it, and 
sloe-juice became the substitute : — 


* Bold and erect the Caledonian stood ; 
Old was his mutton, and his claret good. 
‘Let him drink port,’ an English statesman cried : 
He drank the poison, and his spirit died.” 


However, while he allowed his friends, like the Baron 
of Bradwardine, to indulge in a “ tappit hen,” he confined 
himself to a miserable cruet-full, set before him as his stint. 

He gave very handsome dinners, not only to his aristocratic 
acquaintances, but to the Bar; and every Sunday night in the 
winter season he had a levée, which was attended by distin- 
guished men in all classes of society. This practice was then 
reckoned quite decorous among clergy as well as laity.f But, 


* Holl. 56.. There might be a curious chapter, in a treatise Dre cLaris 
Orarorisus, on the mode of their preparing themselves physically. | Sheridan 
could not speak without a pint of brandy ; and a celebrated speech in the House of 
Lords is said to have been inspired by mulled port. One of the greatest orators 
of the House of Commons is most powerful and imaginative after eating a pound 
of cold roast beef, and drinking a quart of small beer; while it is'a well-known 
fact, that the finest speech of the younger Pitt was delivered immediately after 
a violent fit of vomiting. Some recommend tea; some camphor julep; and one 
orator, that he may electrify his audience, as often as he is going to speak repairs 
to the Polytechnic and receives several shocks from a Leyden jar. 

+ Boswell, in mentioning Johnson’s Tour to the Hebrides, published in 1775, 
says, “I found his ‘ Journey’ the common topic of conversation in London, at 
this time, wherever I happened to be. At one of Lord Mansfield’s formal Sun- 
day evening conversations, strangely called levées, his Lordship addressed me— 
‘ We have all been reading your travels, Mr. Boswell.’ I answered, ‘I was but 
the humble attendant of Dr. Johnson.? The Chief Justice replied, with that 


575 


CHAP. 
XL. 








His defects 
and faults. 


Without 
original 
genius. 


His want 
of moral 
courage. 


REIGN OF GEORGE III. 


though he so far conformed to fashion, it ought to be recorded 
to his credit, that in an age of great profligacy, when kings, 
ministers, and judges, with no obloquy and little scandal, 
openly violated the rules of morality, he always set a bright 
example of the domestic virtues.* 

That I may not be supposed, at the close of my biographical 
labours, to have degenerated into an indiscriminate panegyrist 
of my hero, J must notice his defects and his faults. He 
cannot be considered a man of original genius. With great 
good sense he selected, he adapted, he improved, — but he 
never invented. It is only in Virgil’s last category of im- 
mortals that he is to be inscribed : — | 


“ Quique sui memores alios fecere merendo.” 


It must likewise be admitted that, from a want of moral 
courage, he quailed not only under the ascendancy of Lord 
Chatham, whom beings of a superior order to our species 
might have been afraid to encounter,—but of Lord Camden, 
who was much his inferior in powers of mind and in acquired 
knowledge. His cry of Craven! when the lists had been 
stretched and the trumpet had sounded for a passage of arms 
on the Libel field, lowered his character, and must have been 
a source of painful remembrance for himself to his dying day. 
With boldness, he might have gained a victory which would 
have added new lustre to his name. ft 

A more serious defect was his want of heart. No one 
had a right to complain of him; he disappointed no just ex- 
pectation of favour, and he behaved with kindness to all 
within the sphere of his action; — but all that he did might 
have been done from a refined calculating selfishness, with a 


air aud manner which none who ever saw and heard him can forget, ‘ He speaks 
ill of nobody but Ossian.’”—(Vol. ii. p. 332.) How delightful if the great 
lexicographer himself had been there, and we could have had from Bozzy an 
account of the conference between him and the great lawyer who had drunk 
champagne with the wits! I wish that he had kept up his literary connections, 
and that he had been known to us as the friend of Johnson as well as of Pope. 

* There seems reason to think, that those who were the most intolerant on 
religious subjects were then often the most immoral: and it is an undoubted 
fact, that the eighteenth century, in which Dissenters and Roman Catholies 
were persecuted, was notorious for infidelity and immorality ; while the nine- 
teenth century, along with liberality, has witnessed the spread of true piety, and 
an increased regard for the precepts of religion, 

t 16 Parl. Hist. 1321.; ante, p. 487. 


LIFE OF LORD MANSFIELD. 


view to his'own comfort and credit. He had no warmth of 
affection; he formed no friendships; and he neither made 
exertions nor submitted to sacrifices purely for the good of 
others.* The striking fact to prove that he reasoned rather 
than felt is, that he never revisited his native land, from 
the time when he first crossed the border riding a highland pony 
on his way to Westminster; although he left behind him his 
father and mother, who survived many years, and were buried 
in the church at Scone. It certainly is a very melancholy 
task to return to the haunts of early life after a long absence, 
and, little interest being excited by the new faces of the rising 
generation, a terrible shock is given by the ravages of time 
among our associates. ‘The touching verses of Morris rush 
into our recollection, — 


“ There’s many a lad I loved now dead, 
And many a lass grown old; 
And, as the lesson strikes my head, 
My weary heart grows cold.” fe 
But surely it might have been some compensation to him to 
have stood upon the spot where he first caught a trout in the 
river Tay ;—to have seen his name, carved half a century before 
with his own hand, on the walls of the school-house at Perth; 
— to have recollected the pride with which he had returned 
home to announce that he was Dux ;—to have witnessed 
the satisfaction of his wondering townsmen in finding their 
prognostics of his success in life more than fulfilled ; — to 
have once more been shaded by the tree under which he had 
taken leave of his parents, —to have again embraced them, 
or to have wept over their graves. But these things would 
not have helped him on in the career of ambition, and he cared 
for none of them. 


* Although he never lived in habits of much intimacy with very eminent 
lawyers, he was not stingy in praising them. He said that, “ when Lord Hard- 
wicke pronounced his decrees, Wisdom herself might be supposed to speak ;” 
and on Erskine, whom he had advised to go to the bar, bursting out with lustre, 
he exclaimed, — 

“ Cedite Romani; cedite Graii.” 


{ Captain Morris’s “ Reasons for Drinking :” — 
“ But wine, for a while, drives off despair ; 
Nay, bids a hope remain: 
And this I think’s a reason fair 
To fill my glass again!” 


VOL. II. ae gS: 


577 


CHAP. 
XL, 





Without 


warmth of 
affection. 


578 REIGN OF GEORGE III. 


CHAP. From my Whig propensities, I may be expected to take an _ 

Spee unfavourable view of his public conduct; but here I dis- i 

Defence of COVEr little ground for censure. No candid man can blame 4 

his public his early predilection for the white rose ; or will say that — 

ponds etwas guilty of any culpable inconsistency in taking office _ 

under the established government when the incurable in- _ 

fatuation of the Stuarts had been made manifest, and the ~ 

nation was enjoying freedom and prosperity under the — 

Brunswick line. He ever afterwards faithfully served the 

Crown to which he had sworn allegiance. Asa party man, — 

he was by no means liable to the charge of versatility and 

venality which weighed down his countryman Wedderburn. — 

He had never pretended to be a “patriot,” and he never 

deserted any leader under whom he had enlisted. Although 

he was called.a Whig in the reign of George II., the prin-— 

ciples which he then avowed were the same with those which 

he acted upon in the reign of George III. when he was called 

a Tory. These were essentially Tory principles, and I indi- 

vidually dissent from them, but, as his biographer, I am not 

entitled to say that they were wrong. He entertained them 

sincerely, and acted upon them steadily, without ever suffering 

his love of prerogative or his jealousy of popular privileges to 

betray him inte any act of sycophancy or of oppression. He 

ought to have been aware, however, of the unconstitutional 

nature of the arrangement by which, being Chief Justice of 

the King’s Bench, he was, under various administrations, a 

member of the Cabinet ; and the very boast that he made in 

Wilkes’s case, that he had no concern in originating the prose- 

cution, proved his consciousness of the incompatibility of the 

duties which he had undertaken to perform. I am afraid, 

likewise, that after Lord Bute’s resignation, and on several 

subsequent occasions, he gave advice in the royal closet as the 

* King’s friend,” and that he exercised power without official 

responsibility. But these aberrations were thought of small 

importance eighty years ago, — when, although our constitu- 

tion was theoretically the same, its practical working was 

very different from what we are accustomed to under the 
auspicious rule of Queen Victoria! 








LIFE OF LORD MANSFIELD. 


I add a few strictures upon the character of Lord Mans- 
field by others who may be much more deserving of the 
attention of the reader. And I begin with a lampoon, to 
comfort those who are now the objects of similar attacks, 
and to show them that, if they have any real merit, it will 
not be long clouded even by the grossest scurrility. Thus 
was he described in an article in a newspaper, supposed to 
be written by a professed friend holding a high judicial situa- 
tion * ; — 

“ Full of the ¢atterdemalion honour of the man of quality, for- 
sooth! of his own country, he used to insult the English suitors 
in harangues of virulence and abuse. He had no persuasion in 
his manner, sweetness in his voice, nor energy in his expression ; 
no variety of turn in tone and cadence, adapted to the purport of 
the matter he treated; but was cursed with a loud, clamorous 
monotony, and a disagreeable discordance in his accents, as struck 
so harsh upon the ear that he seemed rather to scream than to 
plead ; and, from thence, was called ‘ Orator Srrix,’ or the Cale- 
donian Screecher. He assumed a bullying audacity in his manner, 
and seemed, by a pertinacious importunity, to overbear rather 
than gain the bench. This faculty, however, recommended him 
to the notice of such solicitors as dealt among the canaitlle, which, 
being much the larger part of the profession, supplied him with 
a competence of business.” T 

But Smollett, in his history of the reign of George IL, 
when noticing the supporters of Mr. Pelham’s administration, 
mentions Mr. Murray as entitled to the first place in point 
of genius : — 

“ This gentleman,” he continues, “the son of a noble family in 
North Britain, had raised himself to great eminence at the bar 
by the most keen intuitive spirit of apprehension, that seemed to 
seize every object at first glance; an innate sagacity, that saved 
the trouble of intense application; and an irresistible stream of 
eloquence, that flowed pure and classical, strong and copious, 
reflecting in the most conspicuous point of view the subjects 
over which it rolled, and sweeping before it all the slime of formal 
hesitation and all the intangling weeds of chicanery.” 


* Chief Justice Willes. 
{¢ Broadbottom Journal, June 27th, 1746. 


re? ‘ 


579. 


CHAP. 
XL. 


Lampoon 
upon bim 
supposed to 
be written 
by a Chief 
Justice, 


His cha- 
racter by 
Smollett. 


580. 


CHAP. 
XL. 





By other 
contem- 
poraries, 


By Lord 


Monboddo. 


REIGN OF GEORGE III. 


In a volume of Political Characters, published in the year 
1777, to which some of the most distinguished writers of the 
day contributed, we find the following passage : — 

“ However party prejudices may adopt their different favourites, 
and each labour in detracting from the merit of the other, it is, 
we believe, generally understood that precedence is allowed the 
Earl of Mansfield as the first magistrate that ever so pre-eminently 
graced that important station. The wisdom of his decisions, and 
unbiassed tenor of his public conduct, will be held in veneration 
by the sages of the law as long as the spirit of the constitution, 
and just notions of equity, continue to have existence. No man 
has ever in an equal degree possessed that wonderful sagacity in 
discovering chicanery and artifice, and separating fallacy from 
truth, and sophistry from argument, so as to hit the exact equity 
of the case. He suffered not justice to be strangled in the nets of 
form. His genius is comprehensive and penetrating; and, when 
he judges it necessary, he pours forth sounds the most seductive, 
equally calculated to persuade and to convince. Among his rare 
qualifications may be added the external graces of his person, the 
piercing eye, the fine-toned voice, and harmonious elocution, and 
that happy arrangement which possesses all the accuracy and 
eloquence of the most laboured compositions.” 


Lord Monboddo, after pointing out the peculiar charac- 
teristics of the eloquence of Demosthenes, observes : — 


“ Upon this, so perfect model of eloquence, Lord Mansfield 
formed a chaste and correct style of speaking, suitable to business, 
and particularly the business of a judge, to whose office it belongs 
not only to determine controversies betwixt man and man, but to 
satisfy the parties that they have got justice, and thereby give 
ease and contentment to their minds ; which I hold to be one of 
the great uses of law. In this Lord Mansfield, as it is well known, 
was so successful, that even the losing party commonly acknow- 
ledged the justice of his decrees.” Then the critic thus apos- 
trophises the object of his praise: “ Having spent so many years 
of your life — more, I believe, than any other man of this age— 
in the administration of justice, with so much applause and public 
satisfaction, I hope, my Lord, you will bear with patience and 
resignation the .infirmities of old age; enjoying the pleasure of 
reflecting that you have employed so long a life so profitably in 
the service of your country. With such reflections, and a mind 


es 


LIFE OF LORD MANSFIELD. 


so entire as yours still is, you may be said to live over again your 
worthy life, according to the old saying: 


oWelt tel + Hoe: est 
Vivere bis, vita posse priore frui.’” 


Bishop Hurd, after a general panegyric on Lord Mansfield 
for “his shining talents, displayed in every department of 
the state, as well as in the supreme court of justice, his pecu- 
liar province, which would transmit his name to posterity 
with distinguished honour in the public records of the nation,” 
thus proceeds : — 


“ Of his conduct in the House of Lords I can speak with the 
more confidence because I speak from my own observation. He 
was no forward or frequent speaker, but reserved himself, as was 
fit, for occasions worthy of him. In debate he was eloquent as 
well as wise; or, rather, he became eloquent by his wisdom. His 
countenance and tone of voice imprinted the ideas of penetration, 
probity, and candour ; but what secured your attention and assent 
to all he said was his constant good sense, flowing in apt terms 
and in the clearest method. He affected no sallies of the imagina- 
tion, or bursts of passion ; much less would he condescend to per- 
sonal abuse, or to petulant altercation. All was clear candid 
reason, letting itself so easily into the minds of his hearers as to 
carry information and conviction with it.” 


I shall conclude these extracts from English writers with 
the testimony of Bishop Newton, who had lived with him 
three quarters of a century : — 


* Lord Mansfield’s is a character above all praise ; the oracle of 
law, the standard of eloquence, and pattern of all virtue, both in 
public and private life. It was happy for the nation, as well as 
for himself, that at his age there appeared not the least symptom 
of decay in his bodily or in his mental faculties; but he had all 
the quickness and vivacity of youth, tempered with all the know- 
ledge and experience of old age. He had almost an immediate 
intuition into the merits of every cause or question which came 
before him; and, comprehending it clearly himself, could readily 
explain it to others: persuasion flowed from his lips, conviction 
was wrought in all unprejudiced minds when he concluded, and, 
for many years, the House of Lords paid greater attention to his 
authority than to that of any man living.” 


581 


CHAP. 
XL. 


By Bishop 
Hurd. 


By Bishop 
Newton. 


582 


CHAP. 
XL. 


REIGN OF GEORGE III. 


Beyond the Atlantic the reputation of Mansfield is as 
high as in his own country, and his decisions are regarded of 
as great authority in the courts at New York and Washington 
asin Westminster Hall. The following tribute to his memory 
is from Professor Story, one of the greatest jurists of modern 
times : — 


“ Eneland and America and the civilised world lie under the 
deepest obligations to him. Wherever commerce shall extend its 
social influences; wherever justice shall be administered by en- 
lightened and liberal rules ; wherever contracts shall be expounded 
upon the eternal principles of right and wrong; wherever moral 
delicacy and judicial refinement shall be infused into the muni- 
cipal code, at once to persuade men to be honest, and to keep them 
so; wherever the intercourse of mankind shall aim at something 
more elevated than that grovelling spirit of barter in which 
meanness and avarice and fraud strive for the mastery over igno- 
rance, credulity, and folly ;—- the name of Lord Mansfield will be 
held in reverence by the good and the wise, by the honest mer- 
chant, the enlightened lawyer, the just statesman, and the consci- 
entious judge. ‘The maxims of maritime jurisprudence, which he 
engrafted into the stock of the common law, are not the exclusive 
property of a single age or nation, but the common property of 
all times and all countries. They are built upon the most com- 
prehensive principles and the most enlightened experience of man- 
kind. He designed them to be of universal application, consider- 
ing, as he himself has declared, the maritime law to be not the law 
of a particular country but the general law of nations. And sucli 
under his administration it became, as his prophetic spirit, in 
citing a passage from the most eloquent and polished orator of 
antiquity, seems gently to insinuate: ‘Non erit alia lex Roma, 
alia Athenis; alia nunc, alia posthac; sed, et apud omnes gentes 
et omni tempore, una eademque lex obtinebit.’ He was ambitious 
of this noble fame, and studied deeply and diligently and honestly 
to acquire it. He surveyed the commercial law of the Continent, 
drawing from thence what was most just, useful, and rational; and 
left to the world, as the fruit of his researches, a collection of 
general principles, unexampled in extent and unequalled in ex- 
cellence. The proudest monument of his fame is in the volumes 
of Burrow and Cowper and Douglas, which we may fondly hope 
will endure as long as the language in which they are written 
shall continue to instruct mankind. His judgments should not be 


LIFE OF LORD MANSFIELD. 


merely referred to and. read on the spur of particular occasions, 
but should be studied as models of juridical reasoning and elo- 
quence.” * 

Ihave often in my youth conversed with men who had 
practised under Lord Mansfield, and who gave imitations of 
him. Erskine’s were particularly fine, and, avoiding every- 
thing of caricature and exaggeration, came up to the highest 
notion which could be formed of dignity, suavity, and im- 
pressiveness.| But the generation who witnessed the. tones 
and the manner of Lord Mansfield is gone, and that which 
listened to his imitators is fast passing away. 

With his features and personal appearance all must be fami- 
liar, for there were innumerable portraits of him, from the time 
when he was habited as a King’s Scholar at Westminster, and 
his countenance was illumined by the purple light of youth, 
till he was changed “ into the lean and slippered pantaloon.”t 
Fortunately, before reaching the seventh age of man, his 
strange eventful history was brought to a close. The two best 
representations of him are supposed to be a full-length, in 
judicial robes, by Reynolds, in the Guildhall of the city of 
London, —the scene of his greatest glory ; and another, by 
Martin, in the hall of Christ Church College, Oxford, where 
he appears in an Earl’s robes, sitting at a table, his right 
hand resting on a volume of Cicero, and a bust of Homer 
placed before him. There is likewise an admirable marble 
statue of him, by Nollekens, to be seen in Trinity Hall, Cam- 
bridge. Engravings and casts from these were formerly to 
be found almost in every cottage in Great Britain. But they 
will soon moulder into dust. 

I have striven in this memoir to enable his admirers to 
follow the counsel given by Tacitus in concluding the life of 
Agricola: “ut omnia facta dictaque jus secum revolvant, 
famamque ac figuram animi magis quam corporis com- 


* Story’s Miscellaneous Works, 411, 412. 

+ Erskine’s Mansfield was said to be as good as the late Lord Holland’s 
Thurlow ; to the excellence of which I can testify, having once seen and heard 
the original. ; 

+ The first extant is by Vanloo; and the last by Copley, a few weeks before 
his death. 


583 


CHAP: 
XL. 





Imitations 
of his 
manner of 
speaking, 


Likenesses 
of him, 


Aspiration 
of the 
Author. 


584 


CHAP. 
XL. 





REIGN OF GEORGE III. 


plectantur.”* I wish I could venture to add, “ Quicquid ex 
eo amayimus, quicquid mirati sumus, manet mansurumque 
est in animis hominum, in eternitate temporum, fama 
rerum.” + 


* That mankind should continue to contemplate all that he said and did, and 
that, cultivating his fame, they should cherish the qualities of his mind rather 
than the lineaments of his person. 

t All that was amiable in him, all that was admirable, remains, and will for 
ever remain; being narrated in the annals of his country, and embalmed in the 
remembrance of a grateful posterity. 


THE END. 


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‘* A valuable contribution to the history of an important 
period.”—Atheneum. 


Xvi. 
SKETCHES OF GERMAN LIFE, 
AND SCENES FROM THE WAR OF LIBERATION. 
From the German. By Sir A. D. Gorpon, Post 8vo. 6s. 
“This is a selection deserving more than ordinary 


attention. The writer lived among distinguished people 
and in stirring times.”—Atheneum. 


XVII. 
THE FALL OF THE JESUITS IN THE 
18th CENTURY. From theFrench, Post 8vo, 2s, 6d. 
‘A candid and moderate work.’’— Cheltenham Journal, 


XVIII, 
HISTORY OF THE SIEGE OF GIBRALTAR, 
By Jonn Drinkwater. New Edition. Post 8vo, 2s. 6d. 
‘A book so replete with interest and information as to 


be truly a legend of the United Services of the day.”— 
United Service Magazine. 


2 


Mr. MURRAY’S LIST OF BOOKS.—Biography:. 


ee a rere 


BIOGRAPHY AND MEMOIRS. 


I. 

LORD HERVEY’S MEMOIRS OF THE 
COURT OF GEORGE II. Now first published. Edited 
by Right Hon. J. W. Croker. Portrait. 2 vols. 8vo, 36s. 

«*T know of no such near and intimate picture of the 
interior of a court. No other Memoirs that I have ever 
read bring us so immediately, so actually into not merely 
the presence, but the company of the personages of the 
royal circle. 

‘‘ Lord Hervey is, I may venture to say, almost the 
Boswell of George If. and Queen Caroline.”—Editor’s 
Preface. 


Il. 
LORD SIDMOUTH’S LIFE. By the Dean 


or Norwicu. Portraits. 3 vols. 8vo, 42s, 


‘© A book which, for its individual subject, and the asto- 


nishing importance of the events it commemorates, is 
exceeded by no work that has appeared.”— Morning Post. 


Ill. 

LIVES OF THE LORD CHANCELLORS 
OF ENGLAND, rrom THE EARLIEST TIMES TO 1838, By 
Lord CAMPBELL. 7 vols. 8vo, 102s. 

‘<A work of sterling merits—one of very great labour, 
of richly diversified interest, and, we are satisfied, of 
lasting value and estimation. We doubt if there be 
half-a-dozen living men who could produce a Biographical 
Series on such a scale, at all likely to command so muc 
applause from the candid among the learned, as well as 
from the curious of the laity."—Quarierly Review. 


IV. 
' LIFE OF LORD CHANCELLOR ELDON, 
By Horace Twiss. Portrait. Third Edition. 2 vols., 
post 8yo, 21s. 

«¢ A work which ought to be in the library of every lawyer, 
statesman, and English gentleman.’’—Blackwoed. 


ve 

SIR HUDSON LOWE’S ACCOUNT OF 
NAPOLEON AT ST. HELENA. Edited by Sir N. H. 
Nicouas. Portrait. 3 vols. 8vo. 


VI. 

SIR FOWELL BUXTON’S MEMOIRS AND 
CORRESPONDENCE. By Cuanrzixs Buxton, Portrait. 
8yvo, 16s, 

Vi. 
LIFE OF GENERAL LORD HILL. 
By Rey. Epwin Sipney. Portrait. Second nan. 8vo, 12s. 

‘“‘There is no military memoir which should so 
gladly place in the hands of a youthful soldier.”— 
Dublin U. Magazine. 

VII. ; 

LIFE OF SIR SAMUEL ROMILLY. 
By hisSons. Portrait. Third Edition. 2 vols. fep. 8vo, 12s. 


“A narrative singularly touching and striking.” — 
Atheneum, 


IX. 

CROKER’S BOSWELL’S JOHNSON. 
Including the Tour to the Hebrides. A Wew Edition, 
vevised. 1 Vol. royal 8vo, 18s. 

“We pronounce ‘ Croker’s Boswell’ as the dest edition 
of an English book that has appeared.”—Quarterly 
Review. 

*,* Be particular in ordering CRoKkER’s BoswEtLu, in 
Ong VOLUME. 


LIFE OF THE GREAT CONDI. 
By Lorp Manon. Post 8vo, 6s. 


‘¢ A very skilful and interesting narrative.”— Quarterly 
Review, 


XI. 
LIFE OF BELISARIUS. 
By Lornp Mauon. A New Edition. Map. Post 8vo, 10s. 6d. 
‘* Anable and valuable performance.”’—Monthly Review. 


XU. 
SIR JOHN BARROW’S AUTOBIOGRAPHY. 
Vrom Barly Life to Advanced Age. Portrait. 8yo, 16s. 


“Here is another pleasant English book to be added 
to the Englishman’s library,’’—Athenaum. 





XIIt. 


LIFE OF THE GREAT LORD CLIVE. 
By Rey. G. R. Gueie. Post 8vo, 6s. 
XIV. 


LIFE OF SIR DAVID WILKIE ; 


‘With his Journals, and Critical Remarks on Works of 


Art. By ALLAN Cunninenam. Portrait. 3 vols. 8vo. 42s. 
‘“* A work of great interest.” —Gentienan’s Magazine, 


Xv. 
LORD BYRON’S LIFE. 
By Tuomas Moors. Portraits. Royal 8vo,15s. 
** A work which must always form an interesting por- 
tion of the history of English literature.”— Times. 
XVI. 
LIFE OF ROBERT BURNS. 
By J. G. Locxuart. Fifth Edition, fcap. 8v0, 3s. 
XVII. 
LIFE OF REV. GEORGE CRABBE. 
By his Son. Portraits. Feap, 8yo, 4s. 
‘¢ We never read a more interesting piece of biography.”’ 
—Atheneum. 
XvITI. 


LIVES OF BUNYAN AND CROMWELL. 
By Roserr SoutHsy. Post 8vo, 2s. 6d. 
‘© Admirably written lives.’’—Yorkshireman. 
XIX, 
MEMOIRS OF LORD SYDENHAM. 
By G.P. Scrorz, M.P. Second Edition. Portrait. 8vo, 9s. 6d. 


‘““We have risen from the perusal of this work with 
much satisfaction.”—Fraser’s Magazine. 


Xx. 
EARL DUDLEY’S LETTERS TO THE 
BISHOP OF LLANDAFF. Second Edition. 8vo, 10s. 6d. 
‘A most interesting volume.”—Literary Gazette. 


XXL. | 
THE NAVAL WORTHIES OF QUEEN 
ELIZABETIVS REIGN. By Joun Barrow. 8vo, lds, 


“This nationally interesting volume.’? — Literary 
Gazette. 


XXII. 
LIFE OF EDWARD GIBBON ; 
With Notes. By Rev. H. H. Mirman. Portrait. 8yvo, 9s. 
‘‘A valuable and necessary companion to the Declin 
and Fall.’—Monthly Review. 
XXIII. 
LIFE OF DR. ANDREW BELL. 
By Rosert Soutusy, LL.D., and Rey. C. C. SouTHEY. 
Portrait. 3 vols. 8yo, 42s. 













XXIV. 
ADMIRAL SIR P. DURHAM’S LIFE. 
By His Nephew, Capt. A. Murray. 8vo, 5s. 6a. 


‘A very interesting and well written memoir.’’ 
Aberdeen Journal, 


XV. 

LIVES OF GALILEO, TYCHO BRAHE 
AND KEPLER. By Sir D. Brewster. Second Edition 
Feap. 8vo, 4s. 6d. ; 


‘‘Gem-like portraitures of three extraordinary geniuses,’ 
—Literary Gazette. 


» &xVE 
MEMOIR OF WILLIAM SMITH, TH 
GEOLOGIST. By Joun Puituips, F.R.S. 8v0, 78. 6d. 
‘‘A grateful and gtatifying recollection.”"—Lit. Gazett. 


XXVIL 
LIFE OF JAMES WATT. By M. Arac 
Translated from the French, by Jd. P. MurrHeap, M. 
8v0, 8s. 6d. 
XXVIII. 
A NAVAL BIOGRAPHICAL DICTIONAR’ 
of Living Officers, By W. R. O’Byrnes Royal 8y 
Nearly Ready. ; 
XXIX. 
LIFE OF SIR FRANCIS DRAKE. 
By Joun Barrow. Post 8vo, 2s. 6d. 


‘* Mr. Barrow has enriched our biographical literature 
—Edinburgh Review, 


Mr. MURRAY’S LIST OF BOOKS.—voyages and Traveis. 





VOYAGES AND TRAVELS. 


Endia and China. 


1. 

LADY SALE’S JOURNAL OF THE 
DISASTERS IN AFFGHANISTFAN. Eighth Edition. 
Post 8vo, 12s, 

“The journal of one whose very name lightens up the 
eye, and gladdens the spirit—of one, whose ‘ story shall 
the gocd man tell his son’—the journal of our high- 
minded noble countrywoman, Lady Sale.”—Afheneum, 


Ul. 
THE SIKHS AND THE AFFGHANS, 
Tn connection with India and Persia, immediately before 
and after the death of Runjeet Singh, By SHAHAMAT ALI. 
Post 8vo, 12s. 
nt 

JOURNEY TO AND RESIDENCE IN 
CABOOL. By Sm ALEXANDER Burnes. Second Edition. 
Plates. 8vo, 16s. 

“The charm of the book is its buoyant style. Personal 
character, domestic scenes, and oriental manners, are 
painted with vivacity, ease, and lightness of touch.”’— 
Spectator. 


lv. 

VOYAGE UP THE INDUS TO THE 
SOURCE OF THE RIVER OXUS, by Kabul and 
Badakhshan. By Lieut. Joun Woop. Map. 8vo, 14s. 

«* The valuable geographical details which Lieut. Wood 
has collected, and his clear sketches of society, render his 
volume one of the most agreeable and instructive of its 
class.”—Atheneum. 


v. 
A JOURNEY THROUGH INDIA. 
By the late Bisuorp HEBER. 2 yols., Post 8vo, 12s. 
‘“ We envy those who read these charming Journals for 
the first time,”— Examiner. 


VI. 

MANNERS AND CUSTOMS OF INDIA. 

By Rev. Cuaries Actand. Post 8vo, 2s. 6d. 

‘* Written in an easy unaffected style: and the sketches 
which it gives of European life and manners under an 
eastern sun must interest all who have friends in India, 
and who would like to know how they pass their days.” 
—The Theologian, 

Vit. 

LETTERS FROM MADRAS; or, First 
Impressions oF Lire in Inp1A. By A LApy. Post 8yo, 
2s. 6d. 

** A welcome addition to our store of literary entertain- 
ment.” —Britannia. 

Vil. 


THE STRAITS OF MALACCA 
PENANG, MALACCA, AND SINGAPORE. By Lieut.NEWBOLD. 
} vols. 8vo, 26s. 


1X. 
HINDOSTAN, 
aeographically, statistically, and historically described. 
$y Waiter Hamitton. Maps. 2 vols, 4to, 4/. 14s. 6d. 


x. 
THIRTEEN YEARS’ RESIDENCE AT 
fH COURT OF CHINA. By Fatuer Riva. From the 
talian. By Fortunato Pranpr. Post 8vo, 2s. 6d. 
“* As interesting a work as any that has appeared, not 
xeepting Borrow’s Bible in Spain,”—Spectutor. 


XI; 

THREE YEARS’ WANDERINGS in the 
YORTHERN PROVINCES of CHINA. With a Visit to 
he Tea and Cotton Countries. By Roperr Fortune, 

Jecond Edition. Plates. 8vo. 15s. 

“This is a genuine book—as full of interest and amuse- 
aent as it is empty of pretences at fine writing. A tra- 
eller with an object, who naturally details the adven- 
ures which befell him in pursuit thereof, and modestly, 
vat earnestly writes, is as welcome as an old friend ora 
Tue witness.”—Atheneum, 


xIt. 
SKETCHES OF PERSIA. 

By the late Sin Joun MAtcoum. Post 8vo, 6s. 
“The Persians are here presented with all the interest 
but without the caricature of our amusing friend Hajji 
| Baba.”’—Quarterly Review. 

XII. 

| NINEVEH AND ITS REMAINS.’ 

| RESEARCHES AND DISCOVERIES IN ANCIENT ASSYRIA. 
Witha Narrative of a Residence in that Country; of Excur- 
| sions to the Vallies of the Nestorian Christians, &c. By 
A. H. Layarp, Esq. With Map, and Ulustrations, 
| 2 vols, 8vo. 


XIV. 
NOTICES ON CHINA, and our Commercial 
Intercourse with that Country. By Sm Grorer STAUNTON. 
Second Edition. 8yvo, 12s. 
Xv. 
SIX MONTHS IN CHINA. 
By Lorp Jocenyn, Sixth Edition. Feap. 8vo, 5s. 6d. 


‘* Lord Jocelyn supplies us with some striking facts 
and unknown particulars.”— Literary Gazette. 


XVI. 
THE CLOSING CAMPAIGN IN CHINA. 


Operations in YANG-TzE-KIANG, and TREATY of NANKING. 
By Carry. G. G. Locu, R.N. Map. Post 8vo. 8s. 6d. 


_ ‘The sketches of Chinese character are the most strik- 
ing and the most graphic we have met with.’’—Naval 
and Military Gazette, 

XVI. 


JAPAN AND THE JAPANESE. Described 


from the Accounts of Recent Dutch Trayellers. Post 8yo, 
9s. 6d. 

‘‘ Containing all the information about Japan which has 
been obtained; well arranged and well put together.”— 
Literary Gazette, 

XVUI. 


EVENTS IN BORNEO AND CELEBES ; 


From the Journals of Sir James Brooke. Edited by 
Capt. Munpy, R.N. Portrait and Plates. 2 vols, 8yo, 
32s. 

‘‘ | found so much instructive and interesting informa- 
tion in the earlier part of Mr. Brooke’s Diaries, not 
ineluded in the work of the Hon. Captain Keppel, that I 
at once determined on giving to the public all such matter 
as had previously been omitted. By adopting this plan, 
I considered that the career of Mr. Brooke might be 
traced with some degree of correctness year by year, 
during his long absence from Exgland.”—Captain Mundy’s 
Preface. 


Africa, 


XIXk. 


THE CAPE OF GOOD HOPE; with Notes 
on the Natural History and Native Tribes. By C.J. F. 
Bunpury, F.L.S. Woodcuts. Post 8vo, 9s. 

“The statesman who may be called upon to discuss or 
decide upon the public affairs of the Cape, the emigrant 
who may contemplate removing his cares thither, the 
curious inquirer who would ‘know the rights,’ of what has 
given rise to so much controversy, will find Mr. Bunbury 
an intelligent and candid guide.”—Ewaminer, 


> oF 
WESTERN BARBARY, WITH ADVEN- 
TURES IN MOROCCO AND AMONG THE MOORS, 
By Drummonp Hay. Post 8vo, 2s. 6d: 
“A new and highly interesting work.’ — Greenock 
Advertiser. 


Mediterranean, and Asia Minor. 
XXI. 


CLASSICAL TOUR IN ATHENS AND 
ATTICA, By Rey. C. Worpswortn, D.D. Second Edition. 
Plates. 8vo, 12s.; also, FAC-SIMILES OF ANCIENT 
WRITINGS on the Watts of Pomprn. Second Edition, 
| ByO, 2s. 6d. 








Mr. MURRAY’S LIST OF BOOKS.—vVoyages and Traveis. 





XXII. 

A VISIT TO THE IONIAN ISLANDS, 
ATHENS, AND THE MOREA. By Epwarp GIFFARD. 
Plates. Post 8vo, 12s. 

““ Mr. Giffard’s work is very creditable to its author.”— 
Quarterly Review. 

XXMI. 


TRAVELS IN CRETE. 
By Ropert Pasuizy, A.M. Plates. 2 vols. 8yvo, 2. 2s. 


eek IY. 

AN EXCURSION IN ASIA MINOR. 
Including a Visit to several unknown and undescribed 
Cities. Second Edition. Plates. Impl. 8vo, 28s. Also, 
DISCOVERIES made during a Seconp Excursion. Plates. 
Impl. 8vo, 2/7. 2s. Withan ACCOUNT OF THE XAN- 
THIAN MARBLES in the British Museum. By S1r 
CHARLES FeLtows. Plates. 8vo, 5s- 

‘‘Qur author has discovered eleven ancient Lycian cities, 
and has allowed the learned world to perceive that Lycia 
has a mine of antiquarian treasures, of which he has only 
scraped the surface.”’—Atheneum. 


XXV. 

RESEARCHES 1n ASIA MINOR, PONTUS, 
AND ARMENIA; with some Account of the Antiquities 
and Geology of those Countries. By W. I. TiAMILTON, 
Plates. 2 vols. 8vo, 38s. 

“Mr. Hamilton’s archzeological researches, and his nar- 
rative in general, have our warmest commendations.”— 
Atheneum. 


XXvI. 
DALMATIA AND MONTENEGRO; witH 
A JouRNEY TO MosTaR IN HERTZEGOVINA, AND REMARKS 
ON THE SLAvonic Nations. By Sir GARDNER WILKINSON. 
Plates and Woodcuts. 2 vols. 8vo. 


Egypt and Syria. 


XXVII. 


TRAVELS IN EGYPT, NUBIA, SYRIA, 
AND THE HOLY LAND. By Captains Irey and 
Maneues, Post 8vo, 2s. 6d. 

«* One of the most interesting and popular works of the 
present century.’”’—Aderdeen Journal, 


XXVIII. 

MANNERS AND CUSTOMS OF THE 
ANCIENT EGYPTIANS. By Sm GarpNER WILKINSON. 
Third Edition. With 600 Illustrations. 5 vols. 8vo, 4l. 4s. 

“Sir Gardner Wilkinson has done more to make the 
pecple of the Pharaohs known to us moderns than any 
contemporary writer.”—Athenaum. 


XXIX, 

CAIRO, PETRA, AND DAMASCUS; 
frcm Notes made during a Tour in those Countries. By 
Joun G. Kinnear. Post 8vo, 9s. 6d. 

+: Mr, Kinnear writes extremely well, and his descrip- 
tions proclaim him a good observer.” —Hwaminer. 


XXX: 

ARABIA PETRA, MOUNT SINAI, and 
the Excavarep City or Perra,—the Epom of the Pro- 
phecies. By M. Leon DE LABoRDE, Second Edition. 
With 65 Plates. 8vo,18s. 

“A publication of extreme value and interest.”—British 
Critic. 

“ All ministers and students should possess this vo- 
lume,”— Evangelical Magazine. 


Polynesia and the South Seas. 


XXXI-. 


VOYAGE OF DISCOVERY TO THE 
SOUTH POLE; 1839—43. By Carr. Sir JAMES CLARK 
Ross, R.N. Plates and Maps. 2 vols. 8vo, 36s. 

«The extracts we have given will speak better than we 
eould for the plain, modest, and manly taste of the author 
—which seems entirely worthy of his high professiona) 
character and signal services.’—Quarlerly Review, 








| 


XXXII. 

TYPEE AND OMOO ; or, the SOUTH SEA 
ISLANDERS: a True Narrative of Real Events. By’ 
Herman MELVILLE. 2 vols., post 8vo, 12s. 

‘The book is excellent, quite first-rate.”"—-Blackwood. 

“Since the joyous moment when we first read Robinson 
Crusoe, and believed it all, and wondered all the more be- 
cause we believed, we have not met with so bewitching a 
work as this narrative of Herman Melville’s.”— JohnBull. 

XXXII. 

RECOLLECTIONS OF BUSH LIFE IN 
AUSTRALIA, during a Residence of Eight Years in the 
Interior. By Henry Wiii1Am Hayveartu. Post 8yo, 25. 6d. 

XXXIV. 

A RESIDENCE IN NEW SOUTH WALES, 
By Mrs. Merepitu. Post 8vo. 2s. 6d. 

“Mrs. Meredith is a pleasant unaffected writer; and 


the book derives interest from being a /ady’s view of New 
South Wales.”—Spectator. 


XXXV- 

SOUTH AUSTRALIA; ITS ADVANTAGES 
AND ITS RESOURCES. A Description of that Colony ; 
and a Manual of Information for Emigrants. By GEORGE 
Wiixinson, Esq. Map. Post 8vo, 10s. 6d. 

XXXVI. 

NEW ZEALAND. With some Account of 
the Beginning of the British Colonization of the Island. 
By E.J. WAKEFIELD. With Map. 2 vols. 8vo, 28s. 

“‘The most complete and continuous history of 
British Colonizationin New Zealand which has appeared. 
—Spectator. 

XXXVII. 
TRAVELS IN NEW ZEALAND, 
By Routes through the Interior, with the Natural His- 
tory of the Islands. By E, Dizrrenpacy, M.D. Plates. 
2 vols. 8vo, 24s. 


Central and South America. 
XXXVIII. 


INCIDENTS OF TRAVEL IN CENTRAL 
AMERICA. 78 Engravings. 2 vols. 8yo, 32s. Also, a 


| SECOND VISIT TO YUCATAN. By Joun L. STEPHENS. 


120 Engravings. 2 vols. 8yo, 42s. 
“These delightful volumes! It is grievous to quita store 
so brimful to overflowingof what we like best.”—Alhenaum 
5. APS : 


ADVENTURES IN MEXICO, and amone 


THE WILD TRIBES AND ANIMALS OF THE Rocky Moun- 
TaIns. By G. F. Ruxton. Post 8vo, 6s. : 

“Mr. Ruxton’s Adventures is a capital book, alike 
attractive for its narrative of travel with its hardships 
and incidents, for its pictures of scenery and society, for 
the direct information it imparts as to Mexico and the 
incidental glimpses it gives us of the Americans and thei 
armies in Mexico.”—Spectator. 


>} ie ; 
JOURNEYS ACROSS THE PAMPAS. B 
Sr Francis Heap. Post 8yo, 2s. 6d. 
‘‘This book has all the interest of a novel.””—Eclecité 
Review. 















XL - 
JOURNAL OF A PASSAGE FROM TH 
PACIFIC TO THE ATLANTIC, crossing the Andes i 
the Northern Provinces of Peru, and descending the grea 
River Maranon. By Henry Lister Maw, R.N, 8vo,1 

XLII. ; 

VOYAGE OF A NATURALIST ROUN 
THE WORLD. By CuHartes DARWIN. Post 8vo, 8s. 

«The author is a first-rate landscape painter, and t 
dreariest solitudes are made to teem with interest.” 
Quarterly Review. : 

XLUIL 

A VOYAGE UP THE RIVER AMAZO 
AND A VISIT TO PARA. By Wiiziam H. Epwar 
Post 8vo, 2s. 6d. 

‘¢ Pull of novelty; we can hardly open a page which 
not its picture for the general observer, and its produ 
for those who, like Sir Joseph Banks, look on the ea 
as one vast museum.”’—Atheneum. 


Mr. MURRAY’S LIST OF BOOKS.—voyages and Travels. 


5 


Se rere ea A ee eee 


Worth America. 
XLIV. 


ARCTIC VOYAGES OF DISCOVERY. 
From 1818 to the present time. By Sim Jonn Barrow. 
Portrait and Maps. 8yo, 15s. ; 

“A book to make one proud of the name of Englishman, 
It is a record of enterprise and endurance, of resolute 
perseverance, and of moral and physical courage, which 
we take to be peculiar to English seamen.”—Ewaminer. 


XLY. 

TRAVELS IN NORTH AMERICA, with 
Geological Observations on the United States, Canada, 
and Nova Scotia. By Cuartes Lyeii, F.G.S. Plates. 
2 vols. post 8vo, 21s. 

‘*Mr. Lyell visited America not merely as a man of 
science or a philosopher, but as a man of sense and of 
the world, eminently imbued with qualifications to con- 
stitute him an astute observer.” —Literary Gazette. 


XLVI. 
FOREST SCENES AND INCIDENTS IN 
CANADA. By Sir Georce Heap. Second Edition. 
Post 8vo, 10s. 
XLVI. 
LETTERS FROM CANADA AND THE 
UNITED STATES. By J.R.Gopixy, 2 vols. post 8vo, 16s. 
“Here is at least one English book of which the 
Americans cannot reasonably complain.’— Atheneum. 
XLVIII. 
MEMOIRS OF A CHURCH MISSIONARY 
IN CANADA, By Rey, J. Apporr. Post 8yo, 2s, 6d. 
“The little work before us is a genuine account of what 
a missionary’s life isnowin Canada. Under an invented 
name, it is the story of the writer’s own experience, told 
in a straightforward and unaffected manner, with consider- 
able power of description.”—Guardian. 


XLIX, 

TOUR THROUGH THE SLAVE STATES, 
from the River Potomac, to Texas and the Frontiers of 
Mexico. By G. W. FeatuersToNHAuGH. Plates. 2 vols. 
8y0, 26s. 

““¥he notices of the natural history, and the mines, 
are novel and interesting ; and his pictures of the heroes of 
the bowie knife are remarkabiy characteristic and enter- 
taining.”’—New Monthly Magazine. 


L. 
" EXCURSIONS IN NEWFOUNDLAND. 


The Cod Fishery—Fog Banks—Sealing Expedition, &c. 
By J.B. Jukes. Map. 2 vols. post 8vo, 21s. 


LI. 
VOYAGE TO TEXAS AND THE GULF OF 
MEXICO, By Mrs. Hovusroun, 2 vols. post 8vo, 21s. 
“The information contained in this admirable work 
will be very important to those who hayean idea of settling 
abroad.”’—Times. 
LU. 


THE JOURNAL OF A WEST INDIAN 
PROPRIETOR, with an Account of Negro Life and 
Manners. By M. G, Lewis, Post 8vo. 2s. Gd. 

“These amusing stories of actual Jamaica life.’— 
Quarterly Review, 


Europe. 
LITT. 


DATES AND DISTANCES ; 
Showing what may be done in a Tour of Sixteen Months 
upon the Continent of Europe. Post 8vo, 8s. 6d. 


nv. 

_ RUSSIA AND THE URAL MOUNTAINS ; 
Geologically Illustrated. By Sm R. Murcurson, G.C,.S, 
Coloured Maps, Plates, &c. 2 vols. royal 4to. 

' **Many admirable memoirs have resulted from these 
excursions ; but the crowning triumphis the great work 
before us. It is impossible, by extract, to convey an idea 
of the value of its contents.”’—Atheneum, 


LY. 

DOMESTIC MANNERS OF THE RUSSIANS. 

escribed from a Year’s Residence in that Country. By 
ey. R. L, VENABLES, M.A, Post 8y0, 9s, 6d. 


‘ new matter. 








LVI. 


RUSSIA UNDER NICHOLAS. 
Translated from the German. By Captain ANTHONY C, 
STERLING. F cap. 8vo, 5s. 

Lively and comprehensive.”—Atheneum, 


LVII. 


LETTERS FROM THE BALTIC. 
By A Lavy. Post 8yo, 2s. 6d. 
**A series of charming descriptions, The style is full 
of ease and freshness,”—Ewaminer, 


LVIII. 


NORWAY AND HER LAPLANDERS ; 
With Hints to the Salmon Fisher. By JoHn Mixrorp. 
8vo, 10s. 6d, 

‘* A pleasant book, on a very pleasant subject : the obser- 
vation of an accomplished and good-natured man,?’— 
Examiner. 

LIX. 

THE CITIES AND CEMETERIES OF 
ETRURIA. The result of several Tours made for the 
purpose of investigating the extant antiquities of Etruria. 
By Georges Dennis. Map and Illustrations. 2 vols, 8yo. 


LX, 


THE BIBLE IN SPAIN; 


Or the Journeys, Adventures, and Imprisonments of an 
Englishman in an Attempt to circulate the Scriptures 
in the Peninsula. By Gores Borrow. New Edition. 
Post 8vo, 6s. 

“‘Mr. Borrow has come out as an English Author of 
high mark, We are reminded of Gil Blas, in the narratives 
of this pious, single-hearted man.” —Quarterly Review. 


LxI. 


THE GYPSIES OF SPAIN; 


Their Manners, Customs, Religion and Language. 
By Georce Borrow. New Edition. Post 8vo, 6s. 

‘*A curious, a very curious work, aud contains some of 
the most singular, yet authentic descriptions of the gipsy 
race which have ever been given to the public.”"—Literary 
Gazette, 


LXII. 


GATHERINGS FROM SPAIN. Being Ex- 
tracts from the Hand-book of Spain. With much 
By Ricuarp Forp, Post 8yo, 6s. 

**The best English book, beyond comparison, that ever 
has appeared for the illustration, not merely of the gene- 
ral topography and local curiosities, but of the national 
character and manners of Spain.”—Quarterly Review. 


DXUuI, 


PEDESTRIAN WANDERINGS wn cue 


FRENCH AND SPANISH PyRENEES. By T, Cuirron Panis. 
Woodcuts. Post 8vo, 10s. Gd. 

“Contain better descriptive passages, strikingly pic- 
turesque, and without the least strain and effort, than we 
recollect in any book of the same light pretension,’?—~ 
EKvaminer. 


LXIV. 
PORTUGAL AND GALLICIA, 
From Notes made during a Journey to those Countrics. 
By Lorp Carnarvon, Third Edition. Post 8yo, 6s. 
“This is a very remarkable work. It is not only a 
graphic description of the face of the country, and an im- 
partial and sagacious account of the moral and political 
condition of Spain and Portugal; but it relates also a series 
of personal adventures and perils, very unusual in modern 
Europe; and which, while they do honour to the spirit 
of him who sought information at such risks, exhibit more 
of the real state of the Iberian Peninsula than could have 
been obtained by a less ardent and less intrepid inquirer.” 
—Quarterly Review. 


LXV. 
TOUR IN AUSTRIAN LOMBARDY, 
TYROL, AND BAVARIA, By Joun Barrow. Wood- 


cuts. Post 8vo, 10s. 6d. 
‘* Agreeably written, faithful and minute.”—Athenaum 


LXVI. 
NARRATIVE OF TRAVELS IN AUSTRIA. 
With Remarks on the Social and Political Condition of that 
Country. By P. E. Turnsuny, 2 yols, 8yo, 245. 


6 


Mr. MURRAY’S LIST OF BOOKS.—Hand-Books, 


a al ane ae eR 


HAND-BOOKS FOR TRAVELLERS, 


Giving detailed and precise Information respecting Steamers, Passports, Moneys, Guides and Servants, 
with Directions for Travellers, and Hints for Tours. 


1. 
HAND-BOOK OF TRAVEL-TALK ; or, Con- 
versations in English, German, French, and Italian. 
18mo, 5s. 


2 
HAND-BOOK FOR NORTH GERMANY 
and the RHINE, HOLLAND, BELGIUM, and PRUSSIA. 
Map. Post 8vo, 12s. 


3. 

HAND-BOOK FOR SOUTH GERMANY 
and the TYROL—BAVARIA—AUSTRIA—SALZBURG 
—The AUSTRIAN and BAVARIAN ALPS, and the 
DANUBE, from ULM to the BLACK SEA. Map, Post 
8vo, 10s- 


4, 

HAND-BOOK OF PAINTING—THE 
GERMAN, FLEMISH, AND DUTCH SCHOOLS. From 
the German of Kuairr. Edited, with Notes, by Sir 
Epmunp Heap. Post 8yo, 12s. 


5. 
HAND-BOOK FOR SWITZERLAND, 
ALPS of SAVOY and PIEDMONT. Map. Post 8vo, 10s. 


6. 

ILLUSTRATIONS to tHe HAND-BOOKS 
yor GERMANY anp SWITZERLAND. A Series of 
Maps and Plans of the most frequented Roads, Cities, 
and Towns, &c. Post 8yo. 


as 
HAND-BOOK FOR NORTH EUROPE, 
DENMARK, NORWAY, SWEDEN, and RUSSIA. Map 
and Plans. Post 8vo. 


8. 
HAND-BOOK FOR MALTA AND THE) 


FAST, the IONIAN ISLANDS, TURKEY, ASIA 
MINOR, and CONSTANTINOPLE. Maps. Post 8vo, 15s. 


9. 

HAND-BOOK FOR EGYPT.—THE NILE, 
ALEXANDRIA, CAIRO, the PYRAMIDS, MOUNT 
SINAI, and THEBES. By Sin GARDNER WILKINSON. 
Map. 15s. 


10. 

HAND-BOOK FOR NORTHERN ITALY 
and FLORENCE, SARDINIA, GENOA, THE RIVI- 
ERA, VENICE, LOMBARDY, and TUSCANY. Map. 
Post 8vo, 12s. 


11. 
HAND-BOOK FOR CENTRAL ITALY 
and ROME, the PAPAL STATES, and CITIES of 
ETRURIA. Maps. Post &vo, lis. 


Critical Opinions on the Want-Books. 
‘¢ Mr. Murray’s series of Hand-books seem destined to embrace all the sights of the world.”— Spectator. 
“The useful series of Hand-books issued by Mr. Murray.” —Ezaminer. 
‘Mr, Murray’s excellent series. Compiled with great care. The information full and satisfactory.”—Athenaum. 


«« Well considered, well arranged, and well compressed. 


tory descriptions and extracts from the most accomplished travellers, 
which not unfrequently are uselessly intruded into these manuals.”—Gentleman’s Magazine, 


«An immense quantity of minute and useful information respecting all places of interest, presented in a pl 
unostentatious, and intelligible manner.’’—Uniled Service Gazette. 


«: All the information a traveller requires; and supplies an answer to every difficulty which can possibly arise.’ 


Atlas. 


“An excellent plan, and contains much in little compass, and is an amusing resource when the read is dull 


our companion has fallen asleep.”—Asiatie Journal, 
“A world of useful information.”—British Magazine. 


‘‘Capital guides! A man may traverse half the continent of Europe with them without asking a questio: 


—Literary Gazette. 


“ Distinguished for the clearness of their arrangement, the specific character of their directions, the quantity 
quality of the matter they contain, as well as for the style and finish of the literary workmanship.”—Spectator, 


12. 
HAND-BOOK FOR SOUTHERN ITALY, 
SICILY, AND NAPLES. Map. Post 8vo. Nearly ready. 


13. 
HAND-BOOK OF PAINTING — THE 
ITALIAN SCHOOLS. From the German of Kueéuer, 
Edited, with Notes, by C. 1. Hastiaxe, R.A. Post 8yo, 12s. 


14, 

HAND-BOOK FOR FRANCE and the 
PYRENEES, BRITTANY, the RIVERS LOIRE, 
SEINE, RHONE, and GARONNE, FRENCH ALPS, 
DAUPHINE, and PROVENCE. Maps. Post 8vo, 12s. 


15. 
HAND-BOOK FOR SPAIN, ANDALUSIA, 
GRANADA, MADRID, &c, By Ricuarp Forp. Maps. 
Post 8vo, 16s. 


16. 
HAND-BOOK OF PAINTING—THE 
SPANISH AND FRENCH SCHOOLS. By Sm Eomunp 
Heap. Post 8vo, 12s. 


17. 
HAND-BOOK FOR ENGLAND—THE 
NORTHERN AND MIDLAND COUNTIES; NORTH 
and SOUTH WALES, &c. Map. Post 8vo. Nearly ready. 


18. . 

HAND-BOOK FOR ENGLAND—THE 
SOUTHERN AND WESTERN COUNTIES. Map. Post 
8vo. In Preparation. 


19. 

TAND-BOOK FOR LONDON—PAST AND 
PRESENT. A CompLere GUIDE To STRANGERS VISITING 
THE Merroro.is. By Peter CUNNINGHAM, 2 vols, Post 
8vo. Nearly ready. 

«<The old Lord Treasurer Burleigh, if any one came to 
the Lords of the Council for a Licence to Travel, he would 
first examine him of England; if he found him ignorant 
would bid him stay at home, and know his own Countr 
vine Sead Compleat Gentleman, by Henry Peackam 
1662. 


20. 

HAND-BOOK TO THE PICTURE GAL 
LERIES in and near London. With Catalogues of thi 
Pictures, accompanied by Historical, Biographical, an 
Critical Notices. By Mrs. Jameson, Post 8vo, 10s. 












21. 
HAND-BOOK FOR WINDSOR AN 
WESTMINSTER ABBEY. Woodcuts. Feap. 8vo, 25.6 





each. 









They combine every practical information, with satisfa 
unencumbered with long historical detail 


Mr, MURRAY’S LIST OF BOOKS.—Theology. 7 





RELIGIOUS WORKS, THEOLOGY, &c. 


. re 
THE ILLUMINATED PRAYER- BOOK. 
With Borders, Initials, Vignettes, Titles, &c., in gold and 
colours. 8vo, cloth, morocco or yellum. 
“* The most elaborate copy of the Liturgy ever executed, 
A noble devotional volume and fitting Christian ma- 
nual.”—Times. 


Il 
DEAN COMBER’S FRIENDLY ADVICE 
TO THE ROMAN CATHOLICS OF ENGLAND. A 
New Edition, with Preface and Notes. By W. F, Hoox, 
D.D., Vicar of Leeds. Feap. 8vo, 3s. 
MI. 
THE THREE REFORMATIONS; Lutue- 
RAN, RomAN, and ANGLICAN. By W, F, Hoox, D,D., Vicar 
of Leeds. Third Edition, 8vo, 3s. 


By Henry Epwarp Mannine, Archdeacon of Chichester. 


‘Second Edition. 8yo, 10s. 6d. 


v. 

SERMONS ON MANY OF THE 
LEADING DOCTRINES AND DUTIES TAUGHT 
BY THE CHURCH OF ENGLAND, By The Dran or 
Norwicx. 2 yols. 8yo, 21s. 


VI. 
SCRIPTURAL COINCIDENCES. 
A TEST OF THEIR VERACITY. ByRey. J. J, Buunr. 
Second Edition. 8vo, 10s. 6d. 

“‘ Whoever has read Dr. Paley’s Hore Pauline, will 
find in this volume an extension of that argument, and its 
application to the Old and New Testament, conducted 
with scarcely inferior ability and success,”=-John Bull, 

Vil. 

THE MOSAIC WRITINGS. By Rey. J. J. 
Buunt. Post 8vo, 6s. 6d. 

VIIL. 

THE ROMAUNT VERSION or tut GOSPEL 
OF ST. JOHN; originally in Use among the Old Wal- 
denses. From the MSS. existing at Dublin, Paris, Greno- 
ble, Zurich, and Lyons. Edited, with Notes by Rey. 
W.S. Gury, D.D. With Facsimiles. 8yo, 


IX, 
THE EVIDENCES or CHRISTIANITY. By 
WILLIAM SEWELL, B.D., Exeter College, Oxford. Feap. 


8yvo, 7s. 6d. 
“* Ably and satisfactorily treated.”—Gentleman’s Mag. 


x 
SUGGESTIONS TO THE STUDENT 
UNDER PRESENT THEOLOGICAL DIFFICULTIES. 
By A.C. Tarr, D.C.L. Post 8vo, 6s. 6d. 
“«We most warmly recommend Dr. Tait’s most useful 
volume,”’—Church and State Gazette. 


XI. 

SERMONS PREACHED ON VARIOUS 
OCCASIONS. By C, J. Vaueuan, D.D., Head Master of 
Harrow School. 8vo, 12s, 6d. 

‘‘Dr. Vaughan’s sermons are forcible, earnest, and 
affectionate ; in tone moderate, but soundly scriptural in 
doctrine.’’—Morning Post. 

XII. 


SERMONS PREACHED in the CHAPEL 
of HARROW SCHOOL. By Rey. C. J, Vaucuan, D.D. 


8vo, 10s. 6d. 

«« The sermons now before us are addressed specifically 
to the boys ofthe public school ; and parents will findthem 
a valuable family possession.”— Christian Observer, 

XII. 


PRAYERS, FROM THE LITURGY, 

By Right Honble. W. E. GLADSTONE., M.P. 12mo, 2s. 6d. 
XIV. 
ATHREE-LEAVED MANUAL or FAMILY 
PRAYER ; arranged so as to save the trouble of turning 
the pages backwards and forwards, Royal 8vo, bound, 2s, 








XV. 

ILLUSTRATIONS OF THE LITURGY 
AND RITUAL OF THE CHURCH; selected from the 
works of eminent Divines of the 17th Century. By 
Rev. JAmes Broapen, M.A. 3 vols. post 8y0, 27s. 

‘*A most valuable addition to every churchman’s li- 
brary.”’—Bishop of Exeter’s Charge, 

XVI. 

CATHOLIC SAFEGUARDS against THE 
Errors, CoRRUPTIONS, AND NOVELTIES OF THE CHURCH 
or Rome, By Rey. JAMEs BrocpEN, M.A. 2 vols. 8yo, 
14s, each. 

***CaTHOLIC SAFEGUARDS:’ a Selection of the ablest 


discourses on the errors of the Church of Rome, chosen 
from the works of our own eminent divines who lived 


Be | during the 17th century,.”—Bishop of London’s Charge. 
ON THE UNITY OF THE CHURCH.) 


XVII. 
THE BOOK OF THE CHURCH; 


With Notes containing References to the Authorities, and 


jan Index. By Rosert Sourury, LL.D. Sixth Edition. 


8vo, 12s. 

“‘T offer to those who regard with love and reverence the 
religion which they have received from their fathers, a 
brief but comprehensive record, diligently, faithfully, and 
conscientiously composed.”— Preface. 


- XVIII. 

REMARKS ON ENGLISH CHURCHES 
and on Rendering Sepulehral Memorials subservient to 
pious and Christian Uses. By J. H. MARKLAND 
Fourth Edition. Woodcuts. Feap. 8vo, 6s. 6d: 

«* This work may be regarded as one of the mostimportant 


steps made lately in the restoration of a sound and efficieut 
chureh-system among us.”— Quarterly Review. 


xIxX, 

REVERENCE DUE TO HOLY PLACES, 
By J. H. Marsnann. Third Edition. Woodcuts. 
Feap. 8vo, 2s. 


Exe 
BISHOP HEBER’S PARISH SERMONS; 
On the Lessons, the Gospel, or the Epistle, for every 
Sunday in the Year. Sixth Edition. 2 vols. post 8yo, 16s. 


XXII. 


SERMONS PREACHED IN ENGLAND. 
By the late Bisnop Heger. Second Edition. 8yo, 9s. 6d. 


XXII. 
PSALMS AND HYMNS, 
Adapted to the various Solemnities of the Church. By 
W. B. Hottann, M.A., Perpetual Curate of Walmer 
24mo, ls. 6d. 


XXII 


VISITATION SERMONS. 
Preached during the Visitation of the Bishop of Exeter 
in 1845, 12mo, 6s. 
XXIV, 

THE LAWS RELATING TO SUNDAYS, 
HOLIDAYS, and DAYS OF FASTING. By E. V. NEALE 
Feap. 8vo., 9s. 6d. 

“An excellent handmaid to ‘Nelson on Fasts and 
Festivals.’”’—British Magazine. 

XXY. 

THE NESTORIANS, or LOST TRIBES, 
With Illustrations of Scripture Prophecy. By AsAHEL 
Grant, M.D. Third Edition. Feap. 8vo, 6s. 

«* An important accession to our stores of geographical 
knowledge.”’—Church of Ingland Review. 

XXVI. 

ABSTRACT PRINCIPLES OF REVEALED 
RELIGION. By Wenry Drummonp. Post 8vo, 9s Gd. 

‘* Contains many striking passages of great power, 
depth, and truth.’’— English Churchman, 





Mr. MURRAY’S LIST OF BOOKS.—Peetry, the Drama, &c. 





POETRY, THE DRAMA, &c. 


Lord Byron's Life and Works. 
(VARIOUS EDITIONS.) 


I. 


LIFE AND WORKS. 
(Library dition.) 
Collected and arranged with Notes by Moore, Ellis, Heber, 
Jeffrey, Lockhart, &c. Plates. 17 vols.fcap. 8yo. 63s., 
or half morocco, 90s. 


Il. 


POETICAL WORKS. 
(Pocket Cvition.) 


CONTAINING 
CHILDE HaARoLp. 


TaAves and Poems. 2 yols. | 
Dramas, 2 vols. 


With Vignettes, 10 vols. 18mo, 25s,, or gilt edges, 35s. 


1 vol. 
MIscELLANIES. 3 vols. 
Don Juan. 2 yols. 


Itt. 


POEMS IN ONE VOLUME. 
With Portraits and Vignette. Royal 8vo, 15s. 


Iv. 


CHILDE HAROLD’S PILGRIMAGE. 


(Ellustratev.) 
With Portrait and Sixty Vignette Engravings. 8vo, 2ls. 


“A splendid work—worth illustrating, and worthily 
iNustrated.”"—Atheneum, 


v. 
TALES AND POEMS. 
J. GIAOUR. 6. Beppo. 
2. Briwe or Abynos, 7. MAZEPPA. 
3. CoRSAIR. 8. IsLAND. 
4. LARA. 9, PARISINA. 
5. Since or CorinTu. 10. Prisoner of CHILLON, 


With Vignettes. 2 vols. 24mo, 5s. 


vi. 
DRAMAS. 


1. MANFRED. 5. Two Foscari. 
2. MARINO FALIERO. 
3. HEAVEN AND EARTH. 


4, SARDANAPALUS. 
With Vignettes. 


7. CAIN. 
| 8. WERNER. 


2 vols. 24mo, 5s. 


Vil. 
CHILDE HAROLD’S PILGRIMAGE. 
With Vignette. 24mo, 2s, 6d. 


VIII. 
MISCELLANIES. 
With Vignettes. 3 vols, 24mo, 7s, 6d. 


IX. 


DON JUAN. 


With Vignettes. 2 yols. 24mo, 5s. 


gay Mr. Murray alone possesses the Copy- 
right of Lorp Byron’s Works, and no edition, 
illustrated or otherwise, can be compLEeTE 
except it bears his name on the title-page. 


6. DEFORMED TRANSFORMED. 


|Rev. George Crabbe’s Life and Works, 


I. 
LIFE AND POETICAL WORKS. 
(Library Kodition.) 


| Plates. 8 vols. fcap. 8vo, 30s., or half morocco, 40s. 


IL. 
POEMS IN ONE VOLUME. 
With Portrait and Vignette. Royal 8vo, lis. © 


re 
CAMPBELL’S SPECIMENS OF THE 
BRITISH POETS. New Edition. Royal 8vo, lbs. 
“Rich in exquisite examples of English poetry, and 
suggestive of delightful thoughts beyond any volume in 
the language.’’—Aflas. 


ll. 

BISHOP HEBER’S POETICAL WORKS. 

Including PALESTINE—EUROPE—THE REDSEA, 
&e. Third Edition. Portrait. Fcap. 8vo, 7s. 6d. 

‘“‘ Bishop Heber has taken a graceful station among the 
favoured bards of the day.”—Literary Gazelte. 

HI. 

REV. H. H. MILMAN’S POETICAL WORKS. 
Including the Fall of Jerusalem—Samor, Martyr of 
Antioch—and other Poems, Second Edition. Plates. 
3 vols. feap. 8vo, 18s. 

‘A fine, classical, moral, and religious poet.”—Lilerary 
Gazetéie. 


IV. 
WORKS OF HORACE. 
With an Original Life. By Rey. H. HW. Mirman. Illus- 
trated with Views, Vignettes, Coloured Borders, &c 
Crown 8yo. 


Vv. 
LOCKHART’S SPANISH BALLADS; with 
Illuminated Titles, Borders, &c. 4to, 2/. 2s. 
‘A more appropriately as well as beautifully embellished 


volume never was offered to the world.” — Edinburgh 
Review. 
VI. 
ALLAN CUNNINGHAM’S POEMS and 
| SONGS. 24mo, 2s. 6d. 


“The works of the most tender and pathetic of the 
Scottish minstrels, in a cheap and elegant form,??— 
Blackwovod. . 

vir. : 

FRAGMENTS IN VERSE. By Lorp Ro- 
RERTSON, Crown 8v0, 7s. 6d. 

“The author sees and feels as a scholar and a poet, 


and as ascholar and a poet he expresses himself.”— 
Times, 











Vul. 
REJECTED ADDRESSES. 

With Notes by the Authors, and Portraits of them. 

Twenty-first Edition. Feap. 8yo, 6s. 


Ix. 

SPECIMENS OF ITALIAN SONNETS 
From the most celebrated Poets, with Translations, 
Rey. Cuarues Stronc, M.A. 8yo, 6s. 


B. 


x. 
VERSE TRANSLATIONS 
From the Swedish Poems of Esaias TEGNER, and from th 


German of Scuinper, By H. DrinkwaTer BeTuung 
Post 8yo, 12s. 


xr, 

ENGLISH HEXAMETERS ; from the German. 
By Sirk Joun HErRScHELL, Dr. WHEWELL, ARCHDEACO 
Harr, Dr. Hawrrey, and J. G. LockuHart. 8yo, 95. 
Also, Verse TRANSLATIONS. 8yo, 2s.6d. 

XI. 
FRAGMENTS FROM GERMAN 

WRITERS. By SaraxH Austin. Post 8yo, 10s, 


PROS 





‘fA delightful volume,”—Alhenaum. 





Mr. MURRAY’S LIST OF BOOKS.—Xustruction. 9 





INSTRUCTION & ENTERTAINMENT FOR THE YOUNG. 


Mrs. Warkham’s Histories. 


I. 
HISTORY OF ENGLAND. 


From the First Invasion by the Romans, to the Reign of 
Queen Victoria. 46th Thousand. Woodcuts. 12mo, 7s. 6d. 


HISTORY OF FRANCE. 


rom the Conquest by the Gauls, to the Reign of Louis- 
Philippe. 20th Thousand. Woodcuts. 12mo, 7s.6d. 


HISTORY OF GERMANY. 
From the Invasion by Marius, to the Battle of Leipsic. 
3rd Thousand. Woodcuts. 12mo, 7s. 6d. 


HISTORY OF ROME AND GREECE. 
For the Use of Schools and Young Persons. With 
Woodcuts, 12mo. In Preparation. 


‘Mrs. MARKHAM’sS Histories are constructed on a 
plan which we think well chosen, and we are glad to find 
that they are so popular, for they cannot be too strongly 
Erorended, as adapted for youth.”—Journal of Edu- 
cation, 


II. 


SERMONS FOR CHILDREN. 
By Mrs, Marxuam. Second Edilion. Fcap 8yo, 3s. 


iil. 


ZESOP’S FABLES. 
A New Version, by Rev. THomMas JAMEs, 
Woodcuts by TennreL. Post 8vo. 


“The literary object of this editionis to present a better 
and Jess coarse translation of the Fables which pass under 
the name of sop, so as to fit them for youth of the pre- 
sent age: the bibliopolic aim is to clothe and illustrate 
those universal favourites of ancient wisdom in a style 
proportioned to our mechanical advancementand applica. 
tion of art to popular pleasure. These ends are attained 
in the very handsome edition before us. Mr, James has 
made a judicious selection of the Fables themselves, and 
of the version to be taken as his text: his translation is 
at.once close and free; the wood engravings are among 
the triumphs of art.”—Spectator. 


With 100 


Iv. 


BERTHA’S JOURNAL DURING A VISIT 
IN ENGLAND, With a variety of Information, arranged 
for every Day. 10th Thousand. 12mo, 7s. 6d. 

“‘T am reading ‘ Bertha’ with the utmost avidity. I can 
scarcely take my attention from this, the best of ail juve- 
nile compilations.””—Rev. George Crabbe. 

“An excellent little work.”—Capt. Busil Hall. 


v. 


JESSE’S NATURAL HISTORY. 
For Schools, With Anecdotes of the Sagacity and Instinct 
of Animals. Siath Edition. Feap. 8yo, 6s. 6d. 


VI. 


PHILOSOPHY IN SPORT MADE SCIENCE 
IN EARNEST; or Natural Philosophy inculcated by the 
Toys and Sports of Youth. Sixth Edition. Woodcuts. 
Feap. 8vo, 8s, 

“We know of no other book which socharmingly blends 
amusement with instruction. No juvenile book has been 
published in our time more entitled to praise.’”— Hxaminer. 


Vil, 


_ CROKER’S STORIES FOR CHILDREN 
FROM THE HISTORY OF ENGLAND. 33rd Thousand. 
Woodcuts. 16mo, 5s. 

“This skilful performance of Mr. Croker’s suggested 


the plan of Sir Walter Scott’s Tales of a Grandfather,”— 
Quarterly Review. 





VII. 
LITTLE ARTHUR’S ENGLAND. By 
Lady Caticorr. 23rd Thousand. Woodcuts. 18mo, 3s. 


“This little History was written fora real little Arthur, 
and I have endeavoured to write it as I would tell it to an 
intelligent child. I well remember what I wanted to be 
told when first allowed to read the History of England.”* 
—Author’s Preface. 

‘‘ Lady Callcott’s style is of the right kind; earnest and 
simple.”—Ewaminer. 


IX. 
CROKER’S PROGRESSIVE GEOGRAPHY 
FOR CHILDREN. 15th Thousand. 18mo, 15. 6d. 


“ The best elementary book on the subject.”—Quarterly 
Review. 


x. 
HISTORY OF THE LATE WAR: 


With Sketches of Nelson, Wellington, and Napoleon. 18mo, 
2s. 6d, 


aE 
GOSPEL STORIES FOR CHILDREN, 

An Attempt to render the Chief Events of the Life of 
Our Saviour intelligible and profitable. Second Edition. 
18mo, 3s. 6d. 

XI. 

FISHER’S ELEMENTS OF GEOMETRY 

AND ALGEBRA. 18mo, 3s. each. (Published by order 
of the Lords of the Admiralty.) 


XIII. 
LOUDON’S YEAR-BOOK OF NATURAL 
HISTORY. Woodcuts. 18mo, 4s. 


“Mrs. Loudon has begun to apply her excellent talents 
and extensive knowledge of natural history, to the ser- 
vice of the young; and this volume is a very delightful 
one.” —Chambers’ Edinburgh Journal, 


xIV, 
SENTENCES FROM THE PROVERBS. 


In English, French, Italian, and German. For Daily Use 
By ALapy. 16mo, 3s. 6d. 


‘* The design of this volume is excellent.”—Aélas, 
‘© An excellent design.”—Literary Gazette. 


XV. 
PUSS IN BOOTS; 


Surrep to the tastes of Lirrtz and Grown CHILDREN. 
By Orro Srecxrer. With Illustrations. 16mo, 5s. 
‘“¢Twelve designs full of excellent humour.”—Haaminer. 
‘«Complete pictures, and tell the story with dramatic 
force.” —Spectator. 
XVI. 


THE CHARMED ROE; 


Toe Srory or THe LirrLe BROTHER AND SISTER, 
By Orro SpeckrerR. With Illustrations. l6mo, 5s. 
‘€A book for kindly remembrances.”—Literary Gazette. 


XVII. 
THE FAIRY RING; 


A Collection of TAaLes and Srories for Young Persons, ° 
With Illustrations by RicHarp Dove. Second Edition. 
Feap. 8vo, 7s. 6d. 

“Rare news for young people—whole sacksful of new 
fairy lore. Nicely illustrated by Mr. Richard Doyle, who 
has lived a long time in Fairy Land, and knows all about 
it.’—Hwvaminer. 

“Three dozen legends, many among them pointed with 
that humorous wisdom which none appreciate better than 
children, make up a month’s entertainment of charming 
quality,’’—~Atheneum, 


10 





CLASSICAL AND 


Dr. Smith’s Dictionaries. 
iL 


A DICTIONARY or GREEK anp ROMAN 


ANTIQUITIES. With numerous Woodeuts. Second 


Edition: 8vo, 36s. 


“A work much wanted, will be invaluable to the 
young student, and as a book of reference will be most 
acceptable on the library table of every scholar.”—Quar- | 


terly Review. 


SCHOOL DICTIONARY OF ANTIQUI- 
TIES. Abridged from the aboye work. With 200 
Woodcuts. Square 12mo, 10s. 6d. 


“‘ Drawn up inaclear and concise style, and weeded 
of those references and speculative matters which tend 


so much to confuse the student who is not far advanced. | 
it isa most valuable addition to our school literature.’ | 


—Cambridge Chronicle. 


A DICTIONARY or GREEK anp ROMAN 
BIOGRAPHY anp MYTHOLOGY. 2 Vols. 8yvo, 36s. 
(To be completed in 3 vols.) 


to the name, in our language; and, as such, it must form 
part of the library of every student who desires to be- 
come acquainted with the mind of antiquity.” — Athe- 
NEUM. 


A NEW CLASSICAL DICTIONARY . 
OF ANCIENT BIOGRAPHY, MYTHOLOGY, anv 
GEOGRAPHY. 8yo. In Preparation. 


This work will comprise the same subjects as are con- 
tained in the well-known Dictionary of Lempriére, avoid- 
ing its errors, supplying its deficiencies, and exhibiting in 
a concise form the results of the labours of modern scholars. 
It will thus supply a want that has been long felt by most 
persons engaged in tuition. 


Il. 


MULLER’S DORIANS; 


THE HISTORY AND ANTIQUITIES OF THE 
DORIC RACE. Translated by TurneL and Lewis. 
Second Edition. Maps. 2 vols. 8vo, 26s. 


“‘ We close the volumes in admiration of the author’s 


unwearied industry and great knowledge.”—New Monthly | 


Magazine. 
IIL. 


BUTTMAN’S LEXILOGUS; 


A Critical Examination of the Meaning and Etymology of | 
Trans- | 


various Words and Passages in Greek Writers. 
lated, with Notes, by. FisHLAKE. Third Edition. 
14s, 


**A most able disquisition. 
more critical knowledge of Greek, moreextensive research, 
and more sound judgment, than we ever remember to 
have seen in any one work before.”—Quarterly Review. 


8yo, 


Iv. 
BUTTMAN’S GREEK VERBS; 


With all the Tenses—their Formation, Meaning, and 
Usage, accompanied by an Index. Translated, with 
Notes, by Fisuuaxe. Second Edition. 8yo,7s, 6d. 


_ “Buttman’s Catalogue contains all those prominent 
irregularities so fully and fundamentally investigated, that 
I was convinced a translation of them would prove a va- 
luable assistant to every lover and student of Greek lite- 
rature,”’—Preface. 








| of Repton School. 
“The only Classical Dictionary, with any pretensions | 


| Customs. 
{ 5s. 6d. 


| Abridged for Schools by Biromrie.p, 
|| vised by Epwarps. 12mo, 3s. 





| Edition. 8vo, 7s. 6d. 
It contains a deeper and 


Mr. MURRAY’S LIST OF BOOKS.—School Books, &c. 


SCHOOL BOOKS. 


Vv. 


CARMICHAEL’S GREEK VERBS. 


Turrr Formations, IRREGULARITIES, AND D&FECTS. 
Second Edition. Post 8vo, 8s. 6d. 


VI. 
WORKS OF HORACE, 

With an Original Life. By Rev. H. HW. Minman, Illus- 

trated with Views, Vignettes from the Antique Statues, 

Gems, Coins, Vases, and coloured borders, Crown 8yo. 


Vu. 


MITCHELLS’ PLAYS OF ARISTOPHANES, 


| With English Notes, 8vo. CLOUDS, 10s.—2. FROGS, lis, 


‘“’ We are not afraid to say that Mr. Mitchell’s Anno- 
tated edition of Aristophanes will form, when completed, . 
something like an epoch in the history of British scholar- 
ship,”’— Quarterly Review. 


VII. 

PEILE’S ASSCHYLUS. 
THE AGAMEMNON AND CHOEPHORG, With 
English Notes, by T. W. Peitz, D.D., Head Master 
Second Edition. 8yo, 9s, each. 


‘« By far the most useful edition ever published in this 


country.” —Owford Herald. 


Ix. 
THE ROMANCE LANGUAGES. 


By G. CornnEwALL Lewis, M.P. Second Edition. 8yo, 12s. 


x. 
SUVERN’S ARISTOPHANES. | 
THE BIRDS AND THE CLOUDS. Translated by 
W. RR. Hamitton, F.R.S. Post 8yvo, 9s. 


x1. 

HASE’S ANCIENT GREEKS ; 
THerR Pusiic AND Private Lirt, Manners, AND 
Translated from the German. Feap. 8vo, 


“Some work appeared to be wanting on Grecian Anti- 


| quities, which, without being unnecessarily diffuse, should — 
| give a notion of the discoveries of modern scholars, and 









particularly of German scholars.”—Preface. 


Xi. 
ON THE PRONUNCIATION OF GREEK. 
By G. J. Pennineton, M.A. 8vo, 7s. 6d. 


XII. 


MATTHIA’S GREEK GRAMMAR. 


New Edition, re- 


XIV. : 


INDEX OF GREEK QUOTATIONS in 
MATTHLA’S LARGER GREEK GRAMMAR. Second 


XV. 


THE GREEK CLASSIC POETS. 
By Henry Newson Coueriper, M.A. Third Edition. 
Fcap. 8yo, 5s. 6d. 


XVI. 
KING EDWARD VIth’s LATIN GRAM- 
MAR. New Edition, revised. 12mo, 3s. 6d. 


XVII. 


ENGLISH NOTES ror LATIN ELEGIACS 
designed for early proficients in the Art of Latin Versifica: 
tion, with Prefatory Rules of Composition in Elegia’ 
Metre. By Rey. W. OxENHAM, M.A., Second Edition 
revised, 12mo. { 





BABBAGE. 


Mr. MURRAY’S LIST OF BOOKS.—Art, Science, &c. 


i] 





ART, SCIENCE, AND MEDICINE. 


L 

THE ANATOMY OF EXPRESSION AS 
CONNECTED WITH THE FINE ARTS. By the 
late Sim Cuanies BELL. Fourth Edition, Plates. Im- 
perial 8vo, 21s. 

“The artist, the writer of fiction, the dramatist, the 
man of taste, will receive the present work with gratitude, 
and peruse it with a lively and increasing interest and 
delight.”—Christian Remembrancer. 


Il. 


SKETCHES OF THE HISTORY OF 


CHRISTIAN ART. By Lorp Linpsay. 3 vols. 8vo. 31s. 6d. | 


“ As acontribution tothe History of Art, Lord Lindsay’s 
work is unquestionably the most valuable which has yet 
appearedin England, and with whatever richness of detail 


succeeding writers may illustrate them, the leading lines | 


of Lord Lindsay’s Chart will always henceforth be fol- 
lowed.”— Quarterly Review, 


Th. 
CONTRIBUTIONS vo tut LITERATURE 
or THE FINE ARTS. By C. UL. Eastriane, R.A. 8yo. 12s. 


Iv. 

KUGLER’S HISTORY OF PAINTING— 
THE ITALIAN SCHOOLS; Edited, with Notes, by 
C. L. Eastuake, R.A. Post Syo, 12s. 


Vv. 

KUGLER’S HISTORY OF PAINTING— 
THE GERMAN, FLEMISH, AND DUTCH SCHOOLS. 
Edited, with Notes, by Sim Epmunp Heap, Bart. Post 
8yvo, 12s. 


VI. 

HISTORY OF PAINTING—The SPANISH 
AND FRENCH SCHOOLS. By Sir Epmunp Heap, Bart. 
Post 8vo, 12s. A Companion to Kugler’s Hand-books, 

“« These volumes present us with a view of the schools 


of painting, and we recommend them as very candid and 
excellent productions.’—Lilerary Gazette. 


VIL. 
AN ENCYCLOPZDIA OF THE ARTS OF 


THE MIDDLE AGES. By the Monk Tueropniu.us. 
Translated, with Notes, by Roperr HENDRIg£, 8y0, 21s. 

*¢ Mr. Hendrie bas done good service to this class of lite- 
rature by the publication of the completest edition of this 
work.” —Spectator. 


Vit. 

THE ANCIENT PRACTICE OF PAINT- 

ING IN OIL AND ON GLASS, and other Arts described 

in several unpublished Manuscripts. With Notes by 
Mrs. MERRIFIELD. 2 vols. Syo. 
<2 


HISTORY OF POTTERY AND PORCE- 


LAIN, with a Description of the Manufacture, from the | 


Earliest Period. By JosrrH Marryar. WithWoodcuts. 8yo, 


x. 
NINTH BRIDGEWATER TREATISE. 


By Cuaries BABBAGE. Second Edition. 8vo, 9s. Gd. 


Xt. 

THE ECONOMY OF MACHINERY AND 
MANUFACTURES. By CuHArstes Bapaace. Fifth 
Edition. Feap. 8vo, 6s. 

Xi. 

TABLE OF THE LOGARITHMS OF THE 
NATURAL NUMBERS from 1 to 108000. By CHARLES 
Second Edition. Royal 8yo, 6s. 


- XU, 
CHEMICAL MANIPULATION ; 

Being Instructions to Students on performing Experi- 

ments. By MicuagL FaravAy, F.R,8. Third Edition. 

8yo, 18s, 





xiv. 


COSMOS ; OR, PHYSICAL DESCRIPTION: 
OF THE WORLD. By Baron ALExR. Von Humpowpr. 
Translated under the superintendence of Lieut-Colonel 
SaBineE, F.R.§, Vols. I. and II. Post 8vo, 12s. each. 

** Je vous autorise, Monsieur, de vous servir en toute 
occasion, de la déclaration, que la belle Traduction du 
Colonel Sabine enrichie de rectifications et de notes trés 
précieuses, et qui ont toute mon approbation, est la seule 
par laquelle j’ai vivement desiré, voir introduit mon 
ouvrage dans la littérature de votre pays.”—Le Baron 
Humboldt a M, Murray, Dec. 15, 1846. 


xv. 

THE CONNEXION OF THE PHYSICAL 
SCIENCES. By Mary SomEervititz. Seventh Edition, 
Plates. Feap. 8vo, 10s. 6d. 

‘‘ The style of this astonishing production is so clear and 
unaffected, and conveys with so much simplicity so great 
a mass of profound knowledge, that it should be placed in 


| the hands of every youth the moment he has mastered the 


general rndiments of education,”— Quarterly Review, 
XVI. 
PHYSICAL GEOGRAPHY. 
By Mary SomErviLue. Portrait. 2 vols. Feap. 8vo. 12s. 
‘* We have followed Mrs. Somerville through her intel- 
lectual journey over the globe, delighted and improved by 
her instruction, The work is written in a style always 
simple and perspicuous, often vigorous and elegant, and 
occasionally rising to a strain of eloquence commensurate 
with the lofty ideas which it clothes. In Mrs. Somerville's 
pages no sentiments are recorded which the Christian or 
the philosopher disowns.”—North Brilish Review, 
XVIL 
CORRESPONDENCE OF JAMES WATT, 
ON HIS DIscOVERY OF THE ComposiTION oF Water, By J. P, 
MuikHeE Ap, Esq., F.R.S.E. With Portrait. 8vo, 10s. 6d. 
XVUL 
ON PRACTICAL SURVEYING WITHOUT 
INSTRUMENTS. By G. D. Burr, of Sandhurst. Second 
Edition. Woodcuts. Post 8vo, 7s. 6d. 


XIX. 
FACTS TO ASSIST THE MEMORY, IN 
VARIOUS SCIENCES. Second Edition. Feap. 8vo, 6s. 6d, 


Lo Hy 
NAVAL GUNNERY ; 
For the Instruction and Examination of Officers, and for 
the Training of Seamen Gunners. By Lirut.-GENERAL 
Srr Howarp Dovetas, Bart. Second Edition. 8vo, 15s. 
" xxXJ, 

BRITISH ASSOCIATION REPORTS. 
York and OxForD, 1831-32, 13s. 6d. CamBrinG#, 1833, 12s, 
EDINBURGH, 1834, 15s, DUBLIN, 1836, 13s. 6d. Buisro, 
1835, 12s. LivERPOOL, 1837, 16s.6d. NEWCASTLE, 1838, 
15s. BirmincHam, 1839, 13s. 6d. GuLAscow, 1840, 15s. 
PiyMourTH, 1841, 13s. 6d. MANCHESTER, 1842, 10s. 6d. Cork, 
1843, 125, Yorn, 1844, 20s. CAMBRIDGE, 1845, 12s. 
SouTHAMPTON, 1846, 15s. 8vo. 

XXII. 


SIR JAMES CLARK ON THE INFLU- 


| ENCE OF CLIMATE. Fourth Edition. Post 8vo, 10s. 6d. 


XXIIL. 
SIR HENRY HALFORD’S ESSAYS, 
Third Edition. Feap. 8vo, 6s. 6d. 


XXIV. 
DR. MAYO ON THE PATHOLOGY OF 
THE HUMAN MIND, Fcap. 8yo, 5s. 6d. 
=< 
DR. ABERCROMBIE ON DISEASES OF 
THE STOMACH. Third Edition, Feap. 8vo, 6s. 
XXVI. 

DR. GOOCH ON THE MOST IMPORTANT 
DISEASES OF WOMEN. Second Edition. 8vyo, 12s, 
XXKVIT 

DR. FERGUSON’S ESSAYS ON THE 
DISEASES OF WOMEN. PartI. Post 8vo, 9s. 6d, 


Mr. MURRAY’S LIST OF BOOKS.—General Literature. 





GENERAL LITERATURE. 


I. 
LITERARY HISTORY OF EUROPE, 


By Henry HattaAm- Third Edition. 3 vols. 8vo, 36s. 

“The most important contribution to literary history 
which Euglish libraries haye received for many years.”’— 
Edinburgh Review, 


I. 
THE EMIGRANT. 
By Sm Francis B. Heap. Fifth Edition. Post 8yo, 12s. 
«*Sir Francis Head's volume is singularly spirited, 
imaginative, nervous, and philosophical. A more vigor- 
ous and fascinating writer does not live.—Times. 
Tl. 


REMARKABLE CRIMES AND TRIALS. 
From the German. By Lady Durr Gorpon. 8vo, 12s. 

‘©The present collection of criminal cases forms, 
as far as we are aware, the most interesting specimen 
existing in our language.”—Law Magazine. 


Iv. 
HAWKSTONE ; 
A Tale of England in the Year 184—. Third Edition. 
2 vols. fcap. 8vo, 12s. 
‘*A close, finished, and powerful composition.”— 
Spectator. 


v. 

OUTLINES OF ENGLISH LITERATURE 
FOR COLLEGES AND SCHOOLS. By Tuomas B. Suaw, 
B.A. Post 8vo. 

“The author has endeavoured to produce a useful 
Introduction to English Literature. Itis the first attempt 
to treat ina popular manner questions hitherto neglected 
in elementary books, but which the increased intelli- 
gence of the present age will no longer allow to be passed 
over unnoticed.”—Preface. 


VI. 
VISITS TO SPOTS OF INTEREST NEAR | 


WINDSOR anpD ETON. By Epwarp Jesse, Woodcuts. 


Post 8vo, 12s. 

‘‘A pleasing and popular omnium gatherum abont inter- 
esting architectural remains, the biography of their by- 
gone inhabitants, country life, rural scenery, literature, 
natural history, &c.’’—Literary Gazette. 


vil. 
NOTES FROM LIFE, in Srx Essays. Second 


Edition. By Henry Tay or. Post 8yo, 6s. 


vill. 
CRITICAL ESSAYS. By Henry Taytor, 


Reprinted from the ‘* Quarterly Review.” Post 8yvo. 


Ix. 

ON THE PHILOSOPHY OF THE MORAL 
FEELINGS. By Jonn ABERCROMBIE, M.D, Seventh Edition. 
Tcap. 8vo, 4s. 


oe ‘ 

ON THE INTELLECTUAL POWERS. By 
Joun ABErcromsiz, M.D. Eleventh Edition. Fcap. 8vo, 
6s. 6d. 

ate 

ON ENGLISH ETYMOLOGIES. By H. 
Fox Tasot, F.R.S. 8vo, 12s. 

‘“‘The most interesting work on the derivation of the 
English language which has appeared for many years,”— 


Literary Gazette. 
XII. 


ZESOP’S FABLES. 
A New Version, chiefly from the Greek, By Rey. 
Tuomas JAmxEs, M.A. With more than 100 New Wood- 
cuts by TENNIEL. Crown 8yo, 16s. 


XI. 
FAMILY ARABIAN NIGHTS. 
Translated. By E. W. Lane. With Notes and 600 Wood- 


cuts. New Edition. 3 vols. post 8yo, 30s. 
XIV. 


ESSAYS ON THE CONDUCT OF LIFE: 
AND MORAL NATURE OF MAN. By GEoRGE Lona. 
8v0, 65. each. 








XV. 


PROGRESSION BY ANTAGONISM. A 
THEORY. Involving Considerations touching the Pre- 
sent Position, Duties, and Destiny of Great Britain. By 
Lorp LinpsAy. 8y0, 6s. 

VE. 6 
THE STORY OF THE BATTLE OF 
WATERLOO. By Rev. G, R. Gieic. Post 8vo, 6s. 

‘¢ This account is instinct with spirit, and many are the 
touching anecdotes which add to its interest.”— Literary 
Gazette. 

XVII. 

BRITISH ARMY AT WASHINGTON 
AND NEW ORLEANS. By Rey. G. R. GuEIe. Post 8vo, 
2s. 6d. 

“‘The personal narrative of an eye-witness.” —Times. 


XVIII. 
SALE’S BRIGADE IN AFFGHANISTAN. 
By Rev. G. R. Gusic. . Post 8yo, 2s. 6d. 
“* One of the noblest records of military adventures that 
we know.”—Morning Chronicle. 
XIX. 
THE WAYSIDE CROSS. A Tale of the 
Carlist War. By Capt. BE. A. Mizman. Post 8vo, 2s. 6d. 
“A spirited and interesting little story.?’—Atheneum. 


xx: 
LIVONIAN TALES. By tHe AuvtTHor oF 
‘* LETTERS FROM THE BAttTic,” Post 8vo, 2s. 6d, 
**Long may the Baltic lady write Esthonian Tales as 
good as these.”—Atheneum. 
XXI. 
BRACEBRIDGE HALL. By Wasuineron 
Irvine, Post 8vo, 6s. 
‘The most charming work ever written.” —Cambridge 
Chronicle. 
XXII. 
THE AMBER-WITCH: aTriat for WitcH- 
craFrt, Translated by Lady Durr Gorpon, Post 8vo, 2s. 6d, 
“We have read nothing in fiction or in history, which - 
has so completely absorbed our interest.”— Quarterly 
Review. 
XXII. 
THE FRENCH IN ALGIERS. Translated. 
By Lady Durr Gorpon, Post 8yo, 2s. 6d. 
‘*A narrative of romantic and absorbing interest.”— 
Northern Whig. 
XXIV. 


) 
TRANSACTIONS OF THE ROYAL aot 
With a 









ETY OF LITERATURE. Second Series. 
and Plates. Yols.I.and II. 8vo, 12s, each. 
Periodicals. 
XXY. 
THE QUARTERLY REVIEW. 8yvo, 6s. 

XXVi1. 

HART’S QUARTERLY ARMY LIST. 8vo, ds, 
XXVII. 


HART’S ANNUAL ARMY LIST. 
XXVUI. 
THE ROYAL NAVY LIST. 8vo, 2s. 6d. 
Published Quarterly by order of the Admiralty. 
D.S.0 by 
THE NAUTICAL ALMANACK, 8vo, 5s. 
Published by Order of the Admiralty. 
RXKS 


ROYAL AGRICULTURAL JOURNAL, 8vo, 6s, 


8yvo, 20s. 


XXXI. 
ROYAL GEOGRAPHICAL JOURNAL. 
XXXII. 


HOME AND COLONIAL LIBRARY. 8yo, 2s.6d 
Published Monthly, 


Svo. 








Mr. MURRAY’S LIST OF BOOKS.—Watural History, Sporting, &e. 





13 








NATURAL HISTORY, SPORTING, &c. 


Xi = 
PRINCIPLES OF GEOLOGY ; or, the 
Modern Changes of the Earth and its Inhabitants. By 
CuarLEs LyELL, F.G.S, Seventh Edition. Woodcuts. 
8vo, 18s. 


“‘Should be read by every ore who takes an interest 
in this rising branch of Natural History.’’—Jameson’s 
Journal. 


II, 
THOUGHTS ON ANIMALCULES. A Glimpse 


at the Invisible World, as revealed by the Microscope. 
By G. A. MANTELL, D.C.L. Plates. Crown 8yo, 10s. 6d. 


“The object of this volume is in the highest degree 
commendable, and the name of the author is guarantee 
sufficient for its correct and agreeable treatment, There 
is no branch of science more interesting, none whose 
revelations are more wonderful, than that which unfolds 
the forms and nature of minute creatures. Dr. Man- 
tell’s idea is a happy one.”’—Chambers’ Journal. 

‘The work before us is a small, but elegant trophy of 
the popular victory. A light and lucid style relieves 
and carries off the technical terms in which Dr. Mantell, 
with a praiseworthy boldness, has not feared to explain 
his subject.’’— Guardian, 


It. 


THE GEOLOGY OF RUSSIA. 
By Sm R, Murcuison, G.C.S. With Coloured Map, 
Tables, Woodcuts, &c. 2 vols. royal 4to. 


‘The publication of this system forms an epoch in 
geological research. . . The author has developed the 
first broad outlines of a new system of classification, 
capable of effecting for geology what the natural system 
of Jussieu had effected for botany. It is a work which 
must necessarily become a standard for geologists.”’— 
Spectator. 

‘‘The impulse given to geology by the publication of 
the ‘Silurian System,’ cannot be too highly appreciated. 
The author at once took his place in the foremost rank 
of geologists. But his energy did not permit him to rest 
satisfied with the accomplishment of so noble a labour. 
Determined to compare and confirm, he followed out in 
foreign lands the research which he had so successfully 
commenced at home. Many admirable memoirs have 
resulted from his excursions; but the crowning triumph 
is the great work before us.”—dtheneum. 


IV, 

THE PRACTICAL GEOLOGY AND 
ANCIENT ARCHITECTURE OF IRELAND. By G. 
WiLkIngon. Plates. Roy. 8yo,28s. 

“The value of scientific knowledge when applied to 
practical purposes, is strikingly shown in this curious 
and useful volume.”—Spectaior. 

«‘The work is one which must be perused with profit by 
every architect and engineer.”—Freeman’s Journal, 


v. 

THE GEOLOGY OF YORKSHIRE. 
By Joun Puinurrs. Part I.—_THE YORKSHIRE COAST. 
Plates. 4to, 1l.11ls.6d. Parr Il—THE MOUNTAIN- 
LIMESTONE DISTRICT. Plates. 4to, 2/7. 12s. 6d. 


VI, 
JOURNAL OF A NATURALIST. 
Fourth Edition, with Woodcuts. Post 8vo, 9s. 6d. 


‘A book that ought to find its way into every rural 
drawing-room in the kingdom.”—Quarterly Review. 


Vil. 
THE NATURAL SYSTEM OF PLANTS; 


‘A PopuLar IntTropuction TO MoprerN Botany. By Mrs. 


Lovpon. Woodcuts. Fcap. 8vo, 8s. 


‘©To any one who wishes to comprehend the names and 
nature of plants, this charming volume can be safely re- 
commended.”— Spectator. 


Vit. 


DAYS OF DEER-STALKING IN THE 
FOREST OF ATHOLL. By Wittiam Scropg, F.L.S. 
Woodcuts by Lanpszer. Third Edition. Crown &vo, 20s. 


‘‘ Brief and imperfect as the preceding abstract is, we 
think that it will fully justify the high praise we have 
bestowed on this work, and induce our readers to sit down 
to the luxurious repast from which we have risen.”— 
Edinburgh Review. 


1X: 
DAYS anp NIGHTS or SALMON FISHING. 
By WituiaAmM Scrorz, F.L.S. Plates by WILKIE and 
LANDSEER, Royal 8yvo, 42s. 


_ ‘‘The fisherman will find in this volume abundance of 
instruction inhis art; the naturalist a large addition to 
his knowledge; and the general reader a fund of adven- 
ture and agreeable and exciting narrative.”—The Critic. 


Xi 
MOOR AND THE LOCH; with Practical 
Hints on Highland Sports, River, Burn, and Loch Fishing, 


&e. By Joun Corquuoun. Second Edition, with Plates. 
8vo, 9s. 6d. 


“Unpretending, clear and practical, and does honour 
to the ‘parent lake.” The book breathes of the mountain 
and the fiood, and will carry the sportsman back to the days 
of his youth.”— Quarterly Review. 


XL 

THE CHASE—TURF—AND THE ROAD. 
By Nimrop. Second Edition, with Plates by ALKEN and 
GitBerT. Post 8vo, 9s. 6d. 


XIT. 

MAXIMS AND HINTS ON ANGLING, 
CHESS, SHOOTING, AND OTHER MATTERS. 
By RicHarD PENN, F.R.S. Second Edition. With 24 Plates. 
Feap. 8vo, 5s, 


“They have the air of novelty, and charm by their 
pregnant brevity, sly sarcasm, and oily raciness.”— Quar- 
terly Review. 


XIII. 
FIELD SPORTS OF FRANCE ; or, Hunting, 


Shooting, and Fishing on the Continent. By Roprrick 
O'Connor. Woodcuts. 12mo, 7s. 6d. 


XIV. 
WILD SPORTS OF THE HIGHLANDS. 


By Coarres St. Jounn. Post 8vo, 6s, 


‘The work is full of interest from beginning to end. 
The bays and rivers team with wild fowl in winter, to say 
nothing of trout and salmon ; and the woods, forests, and 
mountains with a variety of aniraals, the natural history 
of which opens a new source of information to the natu- 
ralist. Next to Mr. Scrope’s Days of Deer Stalking and 
Salmon Fishing, we have met with no author who writes 
more agreeably on those subjects than Mr. St, John.”— 
Times. 

«The descriptions are worthy of Scott, from their clear- 
ness and power,”—Britannia. 


XV- 
MUCK MANUAL FOR FARMERS. 
A Treatise on the Natnre and Value of Manures. By F. 
FaLkner. A New Edition, with a Glossary of Terms. 
Feap. 8vo. 


“A very useful book.’’—LZord Palmerston. 

“€ Addressed to the practical farmer, and written as such 
books ought to be.”’—Bell’s Messenger. 

‘A valuable work for farmers.”—British Farmer’s 
Magazine. 

‘* Will be read with avidity for its valuable informa- 
tion.”—Farmer’s Herald. 

‘* Of great value, and ought to be the pocket-companion 
of every farmer.”-—Derbyshire Courier. 


14 


Mr. MURRAY’S LIST OF BOOKS.—Domestie Economy. 








POLITICS AND STATISTICS, 


I. 
A PLEA FOR PEASANT PROPRIETORS | 


IN IRELAND, By W.T. Tuornton. Post 8yvo,7s. 6d. 


I. 
ENGLISH MISRULE AND IRISH MIS- 
DEEDS. By AUBREY DE Vere, Post 8yo, 7s. 6d. 
1. 


RICARDO’S POLITICAL WORKS. With 


a Biographical Sketch. By J. R. McCunrocu. An Index. | 


8yo, 16s. 

‘“‘The high esteem in which these works are held, 
and their increasing scarcity, have occasioned their 
being collected.”— Economist. 


1v. 
PORTER’S PROGRESS OF THE NATION, 
In its Social and Economical Relations. Second Edition. 
8Y0, 24s. 

“Mr. Porter’s official position enables him to give cor- 
rect information on the multifarious topics brought under 
consideration.”—Chambers’ Journal, 


v. 

THE BANK CHARTER, 
And the State of the Law respecting Currency and Bank- 
ing. By Sir Roverr Peet, Bart,,M.P. 8yo, 3s. 


Vi. 

THE FINANCIAL CRISIS CONSIDERED. 

By Lorp AsHEuRTON. Fourth Edition. 8yo, 1s. 
vil. 

THE REGULATION OF CURRENCIES. 
By Joun Futiarton. 8vo, 7s. 6d. 

“This volume is one of great merit, and ought to be in 
the hands of all who interest themselves in the subject.” 
—Scotsman. 

VIIL. 

THE CRISIS AND THE CURRENCY: 
with a COMPARISON between the English and Scotch 
systems of Banking. By Joun G. Kinnear, of Glasgow. 
Second Edition. 8vo, 3s. 


1X. 
ON THE REGULATION OF BUILDINGS, 
asregardsthe Health of Towns. By W. Hosxine. 8yo, 7s. 6d. 





DOMESTIC AND RURAL ECONOMY. 


un 
MRS. RUNDELL’S DOMESTIC COOKERY, 
founded on Principles of Economy, and Practice, and 
adapted FoR PRIVATE FAMILIES. 70th Edition. Feap. 8vo, 6s. 
““The most PRACTICALLY USEFUL BOOK We ever met 
with.”—Dritish Critic. 
*4* Of this work upwards of 200,000 copies have been sold. 


It 
FAMILY RECEIPT-BOOK ; 
New Edition. Feap, 8vo, 5s. 6d. 


“‘A large quantity of truly valuable matter.”—British 
Critic. 


I. 
CAREME’S FRENCH COOKERY. 
Translated by W. HAtu. Second Edition. Plates, 8vo, 15s. 


Iv. 
FARMING FOR LADIES. 
A Guide for the Poultry Yard, Dairy, and Piggery. 
Woodeuts. Feap. 8vo, 8s. 
‘Intended for those who study healthful domestic 
economy, and has illustrations of Her MAsesty’s pou 
TRY-YARD.”— Newcastle Journal. 


Vv. 
GARDENING FOR LADIES; 
With Instructions for every Month. By Mrs. Loupon, Sixth 
Edition. Woodcuts, Fcap. 8y0, 6s. 


“A most useful and agreeable Manual.’’—Salopian 
Journal, 


| REVIEW. 








ace ‘ 
THE COMMERCIAL POLICY OF PITT 
and PEEL—1785—1846; with a Repiy to the QUARTERLY 
8y0, 3s. 6d. 


XE. 
THOUGHTS ON THE PRINCIPLES OF 
TAXATION, with Reference to a Property-Tax and its 
Exceptions. Dy C. Baspace. 8v0, Is. 


xi. 

POPULAR FALLACIES REGARDING 
GENERAL INTERESTS. Translated, with Notes, by 
G. R. Porter. Fcap. 8vo, 2s. 6a. 


XUI. 

THE SCHOOL, IN ITS RELATIONS TO © 

THE STATE, CHURCH, AND CONGREGATION. 8vo, | 
2s. 6d. ; or Cheap Edition, 3d. 


XIV. 

ON THE JEWISH DISABILITIES. A 
Speech. By Ricur Hon. W, E, Guapstonge, M.P. With 
a Preface. 8vo0, 1s. 6d. 


XV. : 

ON THE EDUCATION OF THE PEOPLE. — 

By W. F. Hoon, D.D., Vicar of Leeds. Yenth Edition. 
8vo, 2s. 6d. 


: 


XVI. 
THE PRISON DISCIPLINE or AMERICA. 


By Francis C. Gray. 8yo, 5s. 


‘A very important and able work. Its calm, scientific 
tone, its rigid and clear analysis, its practical good sense 
and directness, and its marked ability, will give it great 
weight wherever itis dispassionately read.”— Boston Daily 
Advertiser. 
















XVII. 

PARLIAMENTS AND COUNCILS OF 
ENGLAND, From the Reign of William I. to the 
Reyolution in 1688. By C. H. Parry, M.D. 8vo, 30s. 


Miss Lamberit’s Books on Needlework. 


1, 
HAND-BOOK OF NEEDLEWORK. 
A Guide to every Kind of Decorative Needlework, 
Crochet, Knitting, and Netting. Fi/th Edition. Woodcuts, 
Fcap. 8vo, 69. Gd. 
“Contains a great deal of practical information. The 
work is gracefully and well written,”—Athenewm. 


2: 

PRACTICAL HINTS ON DECORATIVE 
NEEDLEWORK, containing minute directions as to the 
choice of materials, and the best methods of employing 
them for Canyas or Tapestry Work. Woodcuts. iémo, 
1s. 6d. 


3. 
MY KNITTING-BOOK. Parts I. & II. 


55th Thousand. Woodcuts. 16mo, Is. 6d, each, 


4, 
MY CROCHET SAMPLER. Parts I. & II. 
18th Thousand. Woodcuts. 16mo, 2s. 6d. and Is. 6d. 


5. 
CHURCH NEEDLEWORK, 
With Practical Remarks on its Preparation and Arrang 
ment. With numerous Engrayings. Post 8yo, 9s. 6d. 


Mr. MURRAY’S MONTHLY LIBRARY. 


15 





Published Monthly, Price 2s. 6d. ; or in Volumes, every alternate month, Post 8vo, 6s., in cloth. 


THE HOME AND COLONIAL LIBRARY, 


Printed in good readable type, on superfine paper, and 
designed to furnish the highest Literature of the day, 


consisting partly of onteinaL Works, and partly of new 
editions of POPULAR PuBLIGATIONS, at the lowest possible 


price. 


This Series, comprising Voyages and Travels, Biography , 
Manners and Customs, &c., and the care exercised in 
the selection of works, together with the moderation of 
price, (an annual outlay of only Thirty Shillings), tecom- 
mend it to all classes. 








THE FOLLOWING HAVE ALREADY BEEN PUBLISHED. 


hy 
BORROW’S BIBLE IN SPAIN. 


“There is no taking leave of a book like this.”— 
Atheneum. 


2. 
BISHOP HEBER’S JOURNAL IN INDIA. 


‘* One of the most delightful books in the language.”— 
Quarterly Review. 


3. 
IRBY AND MANGLES’ TRAVELS. 


“Irby and Mangles’ interesting Travels.” —Literary 
Gazette. 


4. 
DRINKWATER’S SIEGE OF GIBRALTAR. 


‘Truly alegend of the United Services of its day.”— 
United Service Magazine. 


HAY’S MOROCCO AND THE MOORS. 


“A new and highly interesting work.”—Greenock Ad- 
vertiser, 


6. 
LETTERS FROM THE BALTIC. 


**A series of charming descriptions.?’—Ewaminer, 


THE AMBER WITCH. 


“Nothing has so absorbed our interest.”—Quarterly 
Review. 


8s 
SOUTHEY’S CROMWELL AND BUNYAN. 


“«Southey’s admirably written lives.”—Yorkshireman. 


9. 
MRS. MEREDITH’S NEW SOUTH WALES. 


‘Impressions recorded with a fidelity and simplicity 
rarely met with.”—Newcastle Courant. 


10. 
LIFE OF SIR FRANCIS DRAKE. 


“« Mr. Barrow has enriched our biographical literature.” 
—Edinburgh Review. 


ll. 
FATHER RIPA’S MEMOIRS. 


“As curious a book as any that has appeared.’’— 
Spectator, 


12, 
LEWIS’ WEST INDIES. 


‘* These highly amusing stories.”— Quarterly Review. 


13. 
MALCOLM’S SKETCHES OF PERSIA. 


*‘ Has all the interest of our amusing friend Hajji Baba.” 
— Quarterly Review. 


| 14. 
FRENCH IN ALGIERS. 


‘*Ofromantic and absorbing interest.”—Northern Whig. 


15. 
BRACEBRIDGE HALL. 


“The most charming work ever written by Washington 
Irving.” —Cambridge Chronicle. 


16. 
DARWIN’S VOYAGE OF A NATURALIST. 


| ‘Mr. Darwin is a first-rate landscape painter.”— 
(Quarterly Review. 


17. 
FALL OF THE JESUITS. 


**A candid and moderate work.”— Chelfenham Journal. 


18. 53 
LORD MAHON’S LIFE OF CONDE. 
‘A very skilful and interesting narrative.”—Quarterly 
eview, 













19, 
BORROW’S GYPSIES IN SPAIN. 


‘These singularly attractive pages.’’— Literary Gazette. 
2 


0. 
MELVILLE’S MARQUESAS ISLANDS. 


“This book is excellent—quite first-rate.”— Blackwood. 


21. 
LIVONIAN TALES. By a Lapy. 


‘We like these Livonian Tales much.”—Atheneum. 
22 


THE MISSIONARY IN CANADA. 


“Reminds one of the ‘VICAR oF WAKEFIELD,’ "— 
Morning Post. 


23. 
SALE’S BRIGADE IN AFFGHANISTAN. 


‘One of the noblest records of military adyventures.”— 
Morning Chronicle. 


24, 
LETTERS FROM MADRAS. By a Lapy. 


“* A welcome addition to our literary store.”— Britannia. 


25. 
HIGHLAND SPORTS. By Cuartes Sr, Joun, 


“We would not desire a more pleasant companion, ”— 
Morning Post. 


26. 
HEAD’S PAMPAS JOURNEYS. 


‘*Tias all the interest of a novel.”—Eelectic Review. 


27. 
FORD’S GATHERINGS FROM SLAIS. 


**The best book on Spain that has ever appeare 
Quarterly Review. 


28. 
SIEGES OF VIENNA BY THE TURKS. 


‘A valuable contribution to history.’’"—Atheneum. 


29. 
SKETCHES OF GERMAN LIFE. 


* A work deserving much attention.”—Atheneum. 


30. 
MELVILLE’S SOUTH SEA ADVENTURES. 


‘*A companion after our own hearts.”— Times, 
p 


31. 
GLEIG’S BATTLE OF WATERLOO. 


“This account is instinct with spirit.”—Lilerary Gazette. 


32. 
EDWARDS’ VOYAGE UP THE AMAZON. 


‘* This book is full of novelty.”—Atheneum. 


33. 
MILMAN’S WAYSIDE CROSS. 


‘A spirited and interesting little story.’’—Atheneum. 


34. 
ACLAND’S CUSTOMS OF INDIA. 


‘‘Must interest all who have friends in India,’?=« 
Theologian. 


35. 
BRITISH ARMY AT NEW ORLEANS, 


** The Personal Narrative of an eye-witness.’’"— Times. 


36. 
RUXTON’S ADVENTURES IN MEXICO, 


** Full of interest and adventure.”—Atheneum, 


37. 
PORTUGAL AND GALLICIA. 


* A very remarkable work.”— Quarterly Reviews 


38. 
LIFE OF LORD CLIVE. 


‘* One of the best popular biographies,’’—Spectator; 


16 


Mr. MURRAY’S LIST OF BOOKS IN GENERAL LITERATURE. 





PAGE 
ABERCROMBIE’s Works . iland12 
Acland’s India : ° wo. 
/Esop’s Fables . - 9and12 
Agricultural Journal . . . 12 
Amber Witch . . . Shick Le: 
Arabian Nights . ° . 12 
Arts of the Middle Ages ‘ 5 peal 
Ashburton on Finance . 3 . 14 
Austin’s German Writers . . 8 
BaspaGe’s Works . . ll and 14 
Barrow’s (Sir John) Works . 2 and 4 
— (John) Works . 2and5 
Bell (Sir C.) on Expression pe ae 
Bentley’s Correspondence . 
Bertha’s Journal i : 


Bethune’s Swedish Poetry e . 
Blunt’s (Rey. J. J.) Works . . 
Borneo, Brooke’s Journals oe 
Borrow’s Bible in Spain : 
Boswell’s Johnson, by Croker . .« 
Bracebridge Hall. 5 . 
Brewster’s Martyrs of Science . 
British Association Reports . 
Brogden’s Catholic Safeguards, &e. 
Bubbles from the Brunnen ° 
Bunbury’s Cape of Good Hope. 
Burnes’ (Sir A.) Travels > 0 
Burr on Surveying . 5 ° 
Buttman’s Works . 5 
Buxton’s (Sir Fowell) Memoirs ore 
Byron's (Lord) Life and Works 


CAMPBELL’s British Poets . 
—— Lord Chancellors 
Careme’s Cookery : > ae 
Carmichael’s Greek Verbs ° . 
Carnaryon’s Portugal 4 : 
Charmed Roe . : ’ ° ; 
Clark on Climate A 5 oe) 
Coleridge’s Greek Poets . 


Colonial and Home Library 2 5 
Colquhoun’s Moor and Loch . ° 
Comber’s Advice to Catholics 
Crabbe’s Lifeand Poems 

Croker’s England, and Geography . 


_ Boswell’s Johnson . ‘ 
Cunningham’s Poems é Avec 
Dares and Distances ee . 
Darwin's Natural History Res 
Dennis’ Cities of Etruria : . 
De Vere on Ireland : é . 


Dieffenbach’s New Zealand f 
Domestic Cookery . . . . 


Douglas on Naval Gunnery . 
Drinkwater'’s Siege of Gibraltar 
Drummond on Religion ' ° 
Dudley’s (Lord) Letters 


Durham’s (Admiral) Life : 
EasTLAKE on the Fine Arts. 
Education, Minutes 

Edward's Voy age up the Amazon 
Eldon’s (Lord) Life A 
Elphinstone’s India . 
Ellesmere’s (Lord) Vienna , 
English Hexameters . . 
Facts in Various Sciences ° 
Fairy Ring (The) . A ° 


w ahke) 6) Sey ©) 6 6 te 


st et 
OUNCE NOONCHWWONTRENNNOWATOOL 


bt et 


He 


hte 


ba ee 
CHOKE DE REN NNR RR ROR OOO IDO CONT 


Family Receipt-Book.° . aS ale! 
Faraday’s Manipulation . 5 Apu 
Farmingfor Ladies . . - » 14 
Father Ripa’s China “ . a8 
Featherstonhaugh’s America , . 5 
Fellows’ Travels : * SGP Ss 
Fergusonon Women . . coat 
Field Sports of France . se bs 
Fisher’s Geometry and Algebra a” 
Ford’s Spain r . ches) 
Fortune’s China. : ‘ beasts! 
French in Algiers . 5 5 12 
Fullarton on Currencies . ei it 
GeroGRAPHICAL Journal A 12 
Giffard’s Ionian Islands . re a 
Gladstone’s Family Prayers . wd) 
— Jewish Disabilities . 14 
Gleig’s Battle of Waterloo eee 
— Life of Lord Clive . 2 
— Washington 12 





INDEX. 


Godley’s Canada aS BET 
Gooch on Women . ° . 
Gordon’s German Life 5 eee: 
Gospel Stories for Children . - 9 
Grant’s Nestorians . . ee 
Gray on Prison Discipline . 
Grote’s History of Greece . cue ek 
HALFORD’s Essays . . . 
Hallam’s Histories . 
Hamilton’s Hindostan 4 oimantanes 
Asia Minor . 4 rhe | 
Aristophanes . ete 
Hand-books for Travellers . pie 
Hawkstone, a Tale * 
Hart’s Army List . . ° 
Hase’s Ancient Greeks ; a5 
Hay’s Morocco . . 
Haygarth’s Life in the Bush 
Head’s (Sir F. B.) Travels 
(Sir G.) Travels . * 
Heber’s Sermons 5 . 
India 5 5 
Poetical Wor ks Ae 
Heryey’s (Lord) Memoirs . . 
Highland Sports é ° : 
Hill’s (Lord) Life ° . 
History ofthe late War. mag 
Holland’s Psalms and Hymns . 
Hosking on Buildings . ° mre 
Houstoun’s Texas . : : ‘ 
Hook on Education une 
Three Reformations “ 
Humboldt’s Cosmos . 5 600 
{rpy and Mancurs’ Travels . 6 
JAmEsoN’s Public Galleries ay 
Japan. 

Jesse’s Natural History, "&e. ‘9 and 2 
Jesuits (Fall of ) ‘ é a8 
Jocelyn’s (Lord) China . 4 ono 
Jones on Wealth . P 5 
Journal of a Naturalist . - 
Jukes’s Newfoundland c Ark ai 
IKINNEAR’s Cairo . . 5 er: 
Currency 14 
Kugler’s Painting : <6 ‘and li 
LAsorDE’s Arabia Petrea . . 4 
Lambert’s Needlework Books rates 
Layard’s Nineveh . r . era! 
Letters from Madras . A 
the Baltic . Pt Bohs 
Lewis on Dependencies ° 
Negro Life . . bis 


- 


4and1 


ee i 
MW OR HAT ROTI TO 9 Os 8 00 CO TON 


_ 


— Romance Languages 10 
Lindsay’s Christian Art . at oie 
— Antagonism , c 5 lp} 
Little Arthur’s England . eee!) 
Livonian Tales . : ° - 12 


Loch’s China . é RS: 
Lockhart’s Life of Burns . ers 
Spanish Ballads . eins 


Long's Essays. : he 
Loudon’s Gardening and Botany 14 


Natural Histor Via . 
Lowe’s (Sir H.) Memoirs . ° 
Lyellon Geology . 5 . 
North America . 
Manon’s (Lorp) Histories 
Condé and Belisarius 
Malcolm’s Persia ‘ . 
Manning on the Church . 
Mantell on Animalcules ? 
Manual of Family Prayers , 
Markham’s (Mrs.) Histories . 
Sermons 

Markland’s English Churches 
Marryat on Pottery . : ; 
Martineau’s Holy Land . : 
Matthiw’s Greek Grammar 
Maw’'s Maranon ‘ = . 
Mayo on the Mind ‘ 
Melville’s South Seas . e 
Meredith’s New South Wales 
Merrifield on Ancient Painting . 
Milford’s Norway . . 4 
Milman’s Histories . é A 


RINT OO STO STON HOT bh 


Mm 


* S6'6. 6 'o- Chvar 4a 6) _euny 


me a ae 
te ne 











Milman’s Life of Gibbon . 
Poetical Works 


— Horace Ras 

_ Wayside Cross 
Missionary in Canada ‘ 
Mitchell’s Aristophanes 
Moore’s Life of Byron ° 


Muck Manual for Farmers 
Muller’s Dorians 


Murchison’s Geology of Russia _ 


Nautica Almanack, ° 
Navy List . 

Neale on Feasts and Fasts 
Newbold’s Malacca. 3 
Newton’s (Sir Isaac) Life . 
Nimrod on the Chase 
O’Byrne, Naval Biography 
Oxenham’s Latin Elegiacs 
Paris’ Pyrenees : 
Parry’s Parliaments ° 
Pashley’s Crete . ° . 
Peel on Bank Charter . 
Peile’s Aschylus . 
Pellew’s Cathedral Sermons 
Pennington on the Greek 
Penn’s Maxims and Hints 


Phillips’ Geology of Yorkshire 


Philosophy in Sport . ° 
Pitt and Peel Policy 


Porter’s Progress of the Nation, 


Prayer-Book Illuminated . 
Puss in Boots . “ - 
QUARTERLY Review ,. ’ 
RANKE’s Histories. ° 
Rejected Addresses . . 
Remarkable German Trials 
Ricardo’s Political Works . 
Ride to Florence 
Robertson’s (Lord) Poems 
Romaunt Version of Gospel 
Romilly’s (Sir Samuel) Life 
Ross’s (Sir James) Voyage 
Royal Society of Literature 


Rundell’s Domestic Cookery } 


Ruxton’s Mexico 5 
SALE’s (Lady) Journal . 
Brigade . ‘ 
Schroeder’s Mediterranean 


Scrope’s Deer Stalking and Fishin 


Sentences from the Proverbs . 


Sewell on Christianity : 
Shaw’s nglish Literature 
Sikhs and Affghans . 
Sidmouth (Lord) Life of 


Smith’s Classical Dictionaries 


(Dr. W.) Life 5 
Somerville on Science 


Physical Geography 


Southey’s Book of the Church 


Life of Dr. Bell 
Staunton’s China 
Stephens’ Central America. 
Sterling’s Russia ‘ . 
Strong’sItalianSonnets . 


Sydenham’s (Lord) Memoirs 


. 


. 


Cromwell and Bunyan 


. 


Tarr’s Theological Suggestions 


Talbot on Etymologies 
Taylor’s Essays . 5 ° 
Thornton on Ireland . 
Turnbull’s Austria . Fy 
Twiss’s Lord Eldon . ° 
VAUGHAN'Ss Sermons A 
Venables’ Russia > “ 
Visitation Sermons 


Watt’s(J.) Lifeand Correspond. 2&1L 


Wakefield’s New Zealand 
Wilkie’s (Sir David) Life 
Wilkinson’s Egypt . 
Dalmatia . 
Geology . 
South ‘Australia | 
Wood’s Source of the Oxus 
Wordsworth’s Athens 
« Latin Grammar 
i 


— 


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1 1012 01198 9045 


NEW EDITIONS OF STANDARD WORKS. 





GIBBON’S ROMAN EMPIRE. Tue UnmoutinateD TExT AND 


Norges. Epirep By MitMAn AND Guizot. Second Edition. Maps. 6 vols. 8vo. 63s. 


. GROTE’S HISTORY OF GREECE. Vols. 1 to 6. Second Edition. 


Maps. 8vo. 16s. each. 


- HALLAM’S CONSTITUTIONAL HISTORY OF ENGLAND. 


Fifth Edition. 2-vols. 8vo. 24s. 


. HALLAM’S EUROPE DURING THE MIDDLE AGES 


Ninth Edition. 2 vols. 8vo. 24s. 


. HALLAM’S LITERARY HISTORY OF EUROPE. Third 


Edition. 3-vols. 8vo. 36s. 


. CAMPBELL’S LIVES OF THE LORD CHANCELLORS. 


Third Edition. 7 vols. 8vo. 102s. 


. ELPHINSTONE’S HISTORY OF INDIA. Third Edition. 


Map. 1 vol. 8vo. 18s. 


. MAHON’S HISTORY OF ENGLAND. From 1718 to 1768. 


Second Edition. 4 vols. 8vo. 52s. 


. RANKE’S HISTORY OF THE POPES. Transnatep By SARAH 


Austin. Third Edition. 2 vols. 8vo. 24s. 


. RANKE’S HISTORY OF PRUSSIA. Translated from the German. 


3 vols. 8vo. 36s. 


. HORACE: «a New Eprrion, IntustRaTED FROM THE ANTIQUE. 


With Lire, by Rev. H. H. Mruman. 300 Vignettes. 8vo. 


. WILKINSON’S MANNERS AND CUSTOMS OF THE AN- 


CIENT EGYPTIANS. With 600 Inuustrations. Third Edition. 5 vols. 8vo. 84s. 


. SOUTHEY’S BOOK OF THE CHURCH. Siath Edition. 8vo. 


12s. 


- BLUNT’S SCRIPTURAL COINCIDENCES. Second Edition. 


8vo. 12s. 


. BELL ON THE ANATOMY OF EXPRESSION. Fourth 


Edition. Plates, imperial 8vo. 21s. 


. AUSOP’S FABLES: « New Transtatton. By Rev. Toomas James. 


100 Woodeuts. Post 8yo. 16s. 


. BOSWELL’S LIFE OF JOHNSON. Enprrep py Croxer. A 


New Edition. 1 vol. Portraits. Royal 8vo. 18s. 


. CRABBE’S LIFE AND POEMS. Eprrep sy nis Son. A New 


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. BYRON’S LIFE AND POETICAL WORKS. A New Edition. 


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. LYELL’S PRINCIPLES OF GEOLOGY. Seventh Edition. 


Plates and 100 Woodcuts. 1 vol. &vo. 18s. 


. SOMERVILLE ON THE PHYSICAL SCIENCES. Seventh 


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. SOMERVILLE’S PHYSICAL GEOGRAPHY. Second Edition. 


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. ABERCROMBIE ON THE INTELLECTUAL POWERS. 


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| 














MURRAY’S HOME AND COLONIAL LIBRARY, 


1h 


2-3. 


4, 
5. 
6. 


( # 








Volumes already Published, Post 8vo., 63. each. 


BORROW'S BIBLE IN SPAIN. 
BISHOP HEBER'S JOURNALS IN INDIA. 2 vols. 
IRBY AND MANGLES’ TRAVELS—DRINKWATER'S SIEGE 


OF GIBRALTAR. 4 

HAY’S MOROCCO—LETTERS FROM THE BALTIC, 

THE AMBER WITCH—SOUTHEY’S LIVES OF CROM- 
WELL AND BUNYAN. 


MEREDITH'S NEW SOUTH WALES —BARROW’S LIFE 


OF DRAKE. 


_ RIPA’S VISIT TO PEKIN—LEWIS’S WEST INDIES. 

. MALCOLM’S SKETCHES OF PERSIA. 

. FRENCH IN ALGIERS—FALL OF THE JESUITS. 

. BRACEBRIDGE HALL. By Wasutneton Irvine. 

. DARWIN'S VOYAGE OF A NATURALIST. 

. LORD MAHON’S LIFE OF CONDE. 

. BORROW’S GYPSIES OF SPAIN. 

. MELVILLE’S MARQUESAS ISLANDERS. 

. LIVONIAN TALES—THE MISSIONARY IN CANADA. 
_SALE’S BRIGADE IN AFGHANISTAN—LETTERS FROM 


MADRAS, 


. ST. JOHN'S WILD SPORTS OF THE HIGHLANDS. 
. HEAD’S PAMPAS JOURNEYS — SIEGES OF VIENNA BY 


THE TURKS. 


. FORD’S GATHERINGS FROM SPAIN. 

. SKETCHES OF GERMAN LIFE. 

. MELVILLE’S SOUTH SEA ISLANDERS. 

. THE STORY OF THE BATTLE OF WATERLOO. 

. THE RIVER AMAZON—MILMAN’S WAYSIDE CROSS. 

. ACLAND’S INDIA—GLEIG’S WASHINGTON. 

. RUXTON’S ADVENTURES IN MEXICO. 

. CARNARVON’S PORTUGAL AND GALLICIA. 

. GLEIG’S LIFE OF LORD CLIVE. 

. HAYGARTH’S BUSH LIFE — STEFFENS’S AUTOBIO- 


GRAPHY. 


. TALES OF A TRAVELLER. By Wasuaineton Irvine. 

. CAMPBELL’S ESSAY ON ENGLISH POETRY. 

. LORD MAHON’S HISTORICAL ESSAYS. 

. THE RAILROAD AND ELECTRIC TELEGRAPH — 8ST. 


JOHN’S LIBYAN DESERT. 


. A RESIDENCE AT SIERRA LEONE. By A Lapy. 
5. GLEIG’S LIFE OF SIR THOMAS MUNRO. 





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